Opinion
C.A. Nos. 09C-04-094 JAP, N09C-11-192 JAP.
Submitted: August 18, 2010.
Decided: August 30, 2010.
Randall E. Robbins, Esquire, Wilmington, Delaware — Attorney for Plaintiffs Latasha Samuels and Walter Samuels and Aniyah Samuels.
John D. Balaguer, Esquire, Wilmington, Delaware — Attorney for Defendant Janelle Agosto, M.D.
Dennis E. Ferri, Esquire, Wilmington, Delaware — Attorney for Defendant All About Women.
Randall P. Bennett, Esquire, Wilmington, Delaware — Attorney for Defendants Nancy Fan, M.D. and Women to Women, P.A.
MEMORANDUM OPINION
Plaintiffs have moved to consolidate the two medical negligence cases they have filed against different health care providers. Plaintiff Mrs. Samuels and her husband claim they were injured when Mrs. Samuels's obstetrician allegedly negligently failed to discover early in her pregnancy that her baby suffered from sickle cell disease. In the other case Plaintiffs sued a second obstetrician for injuries allegedly occurring during the delivery of the baby. Despite the disparate nature of the claims of negligence, these two cases will be consolidated because the defendants in the first case have alleged that the negligence of defendants in the second case was a superceding cause of one of Mrs. Samuels' injuries.
The two medical negligence cases
In the first case plaintiffs allege that Mrs. Samuels was treated by Nancy Fan, M.D., an obstetrician, during her pregnancy. Because Mrs. Samuels is of African descent, her blood was tested for a certain hemoglobinopathy, the presence of which would suggest the possibility that the baby has sickle cell disease. Mrs. Samuels tested positive for the hemoglobin C trait. When one parent has that trait and one parent has the sickle cell trait, there is a 25 percent chance that the baby will have sickle cell disease. According to the complaint, Dr. Fan did not suggest testing of Mr. Samuels for the sickle cell trait, nor did she offer in utero testing of the fetus to determine if the baby had sickle cell disease. After delivery the plaintiffs learned that their child indeed suffers from sickle cell disease. They allege that if appropriate and timely testing had been done and they had learned the fetus was positive for sickle cell, they would have terminated the pregnancy.
The Samuels's suit against Dr. Fan was filed after their other suit. For purposes of clarity, however, the court has referred to the suit against Dr. Fan as the "first" suit because the events giving rise to the Fan case were the first to occur.
The second case, in which Janelle Agosto, M.D. and Christiana Care are defendants, arises from the child's Caesarian section delivery. Allegedly the surgical team left a sponge in Mrs. Samuels's abdomen, and the delivery team had to reopen her surgical wound to retrieve a surgical sponge. Later that same day, as a result of massive internal bleeding, Mrs. Samuels developed disseminated intravascular coagulopathy, a life threatening condition. As a result, it was necessary to perform a total abdominal hysterectomy on Mrs. Samuels.
Plaintiffs' claims for damages
In their suit against Dr. Fan, plaintiffs seek, among other things, damages for the increased cost of raising a child with sickle cell disease as well as damages stemming from the hysterectomy. With respect to their claim for damages against Dr. Fan stemming from the hysterectomy, Plaintiffs theorize that if they had known their baby had sickle cell disease they would have terminated the pregnancy, thus coincidentally avoiding the later Caesarian section and ensuing hysterectomy. In their suit against Dr. Agosto Plaintiffs seek similar damages, except they do not demand damages for the increased costs of raising a child with sickle cell disease.
The superceding negligence claim
After Plaintiffs filed the instant motion to consolidate, Dr. Fan amended her answer to assert that Dr. Agosto's alleged negligence in performing the Caesarian section was a superceding cause of Mrs. Samuels' injuries relating to her hysterectomy. Just last month our Supreme Court had occasion to reflect upon superceding cause:
Our case law recognized that an intervening cause involving abnormal, unforeseeable, or extraordinary negligence may supersede the original negligent cause and, thus break the chain of proximate causation between the original tortfeasor and victim. Acts that temporally intervene between a defendant's alleged negligence that cause in part the plaintiff's damages may relieve the defendant of potential liability when a jury finds the intervening acts to be abnormal, unforeseeable or extraordinary. Courts often describe the intervening acts so characterized as "superseding or supervening" causes to express the policy judgment that relieves the defendant of liability.
Jones v. Crawford, 2010 WL 2977931*2 (Del.) (footnote omitted).
The issues presented in Fan by reason of her superceding cause defense are (1) whether Dr. Agosto or the hospital negligently treated Mrs. Samuels in a way which proximately caused the need for her hysterectomy, and (2) whether the intervening acts were "abnormal, unforeseeable or extraordinary."
Under this doctrine it may be to Dr. Fan's advantage to have the jury find that Dr. Agosto and the hospital were negligent. The court therefore does not expect that Plaintiffs and Dr. Fan will debate Dr. Agosto's and the hospital's negligence. What will be disputed in Fan is whether that conduct and ensuing injury was "abnormal, unforeseeable and extraordinary." Thus even though Plaintiffs and Dr. Fan may agree that the hospital and Dr. Agosto were negligent, the nature of that alleged negligence is still an integral part of Fan.
Analysis
"In determining whether to grant a motion to consolidate actions, this court has a great deal of discretion." Civil Rule 42 provides that when "actions involving a common question of law or fact are pending before the Court, it may order a joint . . . trial of any or all the matters in issue in the actions." The requirement of a common question of law or fact is satisfied by the presence of the hospital's and Dr. Agosto's alleged negligence in both cases. In the exercise of its discretion the court must "weigh the possible saving of time and effort that consolidation would advance against any inconvenience, delay or expense that it would occasion in determining whether this common issue of fact warrants consolidation."
Ison v. E.I.duPont de Nemours Co., Inc. 2004 WL 2827934*2 (Del.Super.).
Superior Court Civil Rule 42; Earl D. Smith, Inc. v. Carter, 2000 WL 972825 (Del.Super.).
Joseph v. Shell Oil Co., 498 A.2d 1117, 1123 (Del.Ch. 1985).
The hospital and Dr. Agosto argue that Dr. Fan is "not serious" about the superceding negligence claim and is merely pursuing it as a ploy to have the cases consolidated. (There is no explanation why Dr. Fan would actively seek consolidation.) It does not matter whether Dr. Fan is "serious" about her superceding negligence claim. What does matter is whether she has alleged, and can adduce evidence supporting, such a claim. There is understandably no motion before the court at this relatively early juncture testing the sufficiency of that claim. Should the court later determine, upon an appropriate motion, that the superceding negligence claim must be dismissed, it will entertain an application by Dr. Agosto or the hospital to sever the claims.
The hospital, joined by Dr. Agosto, also opposes the motion to consolidate on the basis that, as a matter of law, there is no superceding negligence here. It argues in part:
The alleged negligence of Dr. Fan is not intervening negligence. It is antecedent to the alleged negligence of the Agosto Defendants. Thus it simply does not qualify for the defense of intervening and superseding negligence.
This contention misapprehends the nature of Dr. Fan's claim of superceding negligence. It is the alleged negligence of Dr. Agosto and the hospital — not the alleged negligence of Dr. Fan — which is claimed to be superceding negligence. The hospital also argues in part:
The Fan Defendants cannot seriously argue that anything the Agosto Defendants did or did not do with regard to surgery on Mrs. Samuels had anything to do whatsoever with their child being born with sickle cell disease.
This too misapprehends the nature of Dr. Fan's superceding negligence claim. Dr. Fan does not assert that the alleged negligence during the delivery has anything to do with the child being born with sickle cell disease; she only argues that the alleged superceding negligence relieves her from liability for the damages stemming from the hysterectomy.
Finally the hospital argues that it will be prejudiced because the abortion issue (which only relates to the claims against Dr. Fan) will be played out in the consolidated trial. Presumably it believes that jurors who are "pro-choice" may be sympathetic to Mrs. Samuels, who alleges that she would have terminated the pregnancy if she had known her child had sickle cell disease. It is true, of course, that many people have strongly held views on both sides of the abortion issue and the debate over that issue can become quite emotional. The notion that a prochoice juror would be biased against the hospital — which had nothing to do with the abortion issues in this case — is attenuated at best. Moreover, the court is experienced in screening jurors in other "hot button" emotional matters, such as death penalty cases. It is confident that the jury selection process here will yield a jury that is not biased for or against any party because of the abortion issue. The court therefore finds there is no compelling reason to deny the motion to consolidate.
By the same token, jurors who are "pro life" may potentially be biased against Mrs. Samuels.
In favor of consolidation are the savings of time, judicial resources and perhaps expense which will result. Consolidation will eliminate the needless duplication of testimony in two separate trials and will facilitate conclusion of the remaining discovery. On balance these, and other, advantages outweigh the disadvantages claimed by Dr. Agosto and the hospital. The motion to consolidate is hereby GRANTED. The court will arrange a scheduling conference with the parties.