Del. SC says trial court erred, awards new medmal trial

John O'Brien Aug. 9, 2007, 3:12pm


DOVER, Del. - Two mistakes were made during a Superior Court medical malpractice trial, the Delaware Supreme Court recently ruled in ordering another trial.

The case against Dr. Carl Abramowicz and Southern Delaware Imaging Associates concerns the death of Robert Barrow and was filed by his estate and several individual family members.

Three justices, including opinion author Chief Justice Myron Steele, ruled the plaintiffs did have a right to use the pretrial discovery deposition the defendant's medical expert. Also, they decided the trial judge should not have allowed Abramowicz to speak on issues of causation without providing notice.

"Dr. Krasnow's opinion was relevant, highly probative evidence that went to 'the very heart of' the Barrows' case," Steele wrote, "and all parties had reason to believe and were on notice that the pretrial depositions of expert witnesses may be introduced by either at trial.

"The trial judge also erred when he failed to limit the scope of Dr. Abramowicz' trial testimony to the observed facts related to standard of care that he disclosed at his pretrial deposition."

Abramowicz took x-rays of Barrow's chest in 2001, six months before doctors diagnosed him with lung cancer. The plaintiffs allege Abramowicz failed to recognize the cancer and created a situation where Barrow's doctors did not have enough time to treat him.

Abramowicz makes both arguments that the cancer could not be seen in his Nov. 2001 x-ray and that it was at such an advanced stage at the time it could not be treated anyway. Steele called his argument "arguably inconsistent."

Krasnow was an oncologist whom the defendants planned to use as a medical expert. Both sides agreed with each witness that they could use pretrial discovery depositions for witnesses that could not make the trial and call each others' experts.

After the trial was delayed until Aug. 21, 2006, Abramowicz' legal team informed the plaintiffs it would not be calling Krasnow. Krasnow had said the x-ray showed the cancer in the left lobe of Barrow's lung.

Abramowicz objected when the plaintiffs attorneys attempted to call Krasnow as a witness, and the trial judge agreed to not let the jury hear the pretrial discovery deposition.

"The judge also alluded to a 'general bar against parties calling opposing standard of care experts' in Delaware," Steele wrote.

The trial judge also permitted Abramowicz to testify the radiographic abnormalities in the left lobe was benign and that there was no cancer. The plaintiffs objected because Abramowicz had not expressed this opinion before the trial and this new opinion conflicted with the one he expressed during his deposition.

"The trial judge abused his discretion by permitting Dr. Abramowicz' testimony because the defense never identified Abramowicz as an expert who would be giving causation opinions at trial," Steele wrote.

That trial found Abramowicz had acted negligent, but that negligence was not a cause of Barrow's death.

Justices Carolyn Berger and Jack Jacobs joined in the opinion. They were the only three justices who heard the case.

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