In McCool v. Gehret, the Supreme Court of Delaware held that evidence of alleged witness intimidation is admissible in a malpractice claim. In this case, Mrs. McCool suffered from complications after the birth of her son by a Cesarean section. After the delivery, Dr. Gehret, her treating physician, noticed bleeding from the right side of the incision when he was suturing her. After suturing the bleeding area, Gehret determined that the bleeding had ceased, and he finished closing the incision. He went home at 2:40 a.m. after checking on the patient. McCool’s" condition began to deteriorate after Dr. Gehret went home. Her blood pressure began to decline and her pulse rate was increasing. When Dr. Gehret was called at home at 4:40 a.m., he ordered blood tests for McCool. Two hours later, Dr. Gehret was called once again. He was advised that McCool’s platelet count was low, and that her blood lacked the ability to clot. Dr. Gehret ordered the infusion of additional platelets to prepare McCool for surgery to stop intra-abdominal hemorrhaging.


    Later that morning when Dr. Gehret performed an exploratory laparotomy on McCool, he discovered that a large amount of blood had accumulated in her abdomen. He became concerned that Mrs. McCool would die if he did not stop the bleeding. Concerned with the apparent inability of her uterus to contract, he decided to remove the uterus. Mrs. McCool returned to the care of her former obstetrician/gynecologist, Dr. Dein. He reviewed her record and concluded the patient’s internal bleeding should not have been allowed to persist for eight hours, and that the bleeding could have been controlled without the removal of her uterus.


    The patient and her husband filed suit against Dr. Gehret. Dr. Dein wrote a report that was very critical of the treating physician’s care and the McCools relied on this report to support their allegations in the medical malpractice suit. When the defendant became aware of the report that the obstetrician drafted, he contacted an acquaintance who was on staff at the hospital with the obstetrician. At Dr. Gehret’s request, this physician relayed a message to Dr. Dein that it was inappropriate for doctors to testify against other doctors. Dr. Dein believed this message was meant to coerce or intimidate him into not testifying. He eventually gave in, and decided not to testify after his colleague contacted him again and told him he was surprised and disappointed that he had remained involved in the McCool’s’ suit.


    Two days before the trial was to begin, the McCools pleaded with Dr. Dein to reconsider his decision to testify. The obstetrician changed his mind again. By then, however, the McCools’ attorney did not have time to prepare Dr. Dein for his testimony. The jury found for the defense in the medical malpractice case, despite Dr. Dien’s testimony for the plaintiff. Evidence of the interference by the defendant in the plaintiff’s case was excluded.


    The McCools appealed to the Supreme Court of Delaware, which held that excluding evidence of the treating physician’s interference with the obstetrician’s testimony was reversible error. Citing Meyer v. McDonnell, the court explained that the evidence of the doctor’s efforts to intimidate was “admissible as tending to show his consciousness of the weakness of his case and his defense would not prevail without the aid of such improper and unfair tactics as those in which he engaged.” The court explained that the defendant’s conduct was not only admissible to impeach his credibility, but that this evidence was also admissible by the plaintiffs as direct proof of his negligence. Consequently, the court ruled that the jury may infer that Dr. Gehret considered his case to be weak because he was guilty of the negligence alleged in the McCools’ complaint.


    Becoming involved in a lawsuit is a very traumatic experience in a health care professional’s life. It is common to feel a need to speak with certain individual’s about one’s feelings. However, as this case illustrates, extreme caution must be exercised about who can and cannot be spoken to. The most obvious choice would be one’s attorney, as these conversations will almost always be considered confidential and not discoverable by any third parties. Similarly, conversations between spouse’s, with one’s insurer or with a psychiatrist are also generally afforded confidentiality, as long as these conversations are private and not in the presence of any third party.


    However, beyond these exceptions, any conversations which relate to the litigation in any way will be discoverable and may later be brought up at trial. Therefore, when one becomes involved in litigation, advice should immediately be sought from your attorney regarding the appropriateness of discussing the litigation with a third party. Also, the attorney should be aware of the contents of the intended conversation. Finally, one should not discuss the lawsuit with physicians who were involved in the treatment of the patient for such conversations might later be interpreted as attempts to influence their testimony or color their recollection of events.

    Intimidation Hurts Defense

    by Attorney Frank E. Reardon

    April 1996

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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