Signey v. Plaff, M.D.

• Court: Superior Court of Delaware
• Decided: July 25, 2023
• Docket: N20C-10-244 FJJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHANTALE SIGNEY and HEROLD ) SIGNEY, ) ) Plaintiffs, ) ) v. ) C.A. No. N20C-10-244 FJJ ) WILLIAM L. PLAFF, M.D., and ) LEWES SPINE CENTER, LLC, ) ) Defendants. )

Submitted: July 7, 2023 Decided: July 25, 2023

ORDER

Upon Consideration of Defendants’ Motion to Strike Errata Changes: DENIED.

1. This medical negligence action arises from two spinal surgeries performed on

Plaintiff Chantale Signey by Defendant Dr. William L. Pfaff at the Lewes Spine

Center (collectively, with Dr. Pfaff, “Defendants”) in January 2019. On April

6, 2023, Defendants deposed Dr. Nicholas Theodore, Ms. Signey’s medical

expert in this case. Following that deposition, Dr. Theodore submitted an errata

sheet setting forth multiple “clarifications” (“corrections”) of his deposition

testimony. Defendants now move to strike a number of those corrections,

arguing they materially change Dr. Theodore’s deposition answers.

2. After careful review of Dr. Theodore’s deposition testimony and errata sheet, it

appears that his revisions to his deposition answers are not a tactical attempt to rewrite damaging deposition testimony. Accordingly, for the reasons that

follow, Defendants’ motion to strike the corrections is DENIED.

3. After a series of consultation appointments in late 2018, Dr. Pfaff performed two

anterior cervical discectomies on Ms. Signey to address complaints of neck pain

in early 2019. Put simply, the intent of the procedures was to relieve

compression of Ms. Signey’s nerve root and spinal cord.

4. Dr. Pfaff performed the first procedure on January 7, 2019. As he did so, he

noted a fluid leak in the left region of Ms. Signey’s spine and sprayed a spine

sealant in the area to stop the leak. When Ms. Signey awoke, she noted weakness

in both arms and paralysis of her right leg. A post-surgical cervical MRI

revealed severe spinal stenosis, most pronounced in the area Dr. Pfaff had just

performed on, with abnormal cord signal consistent with compressive

myelopathy. In other words, the surgery allegedly caused compression of the

spine, where the intent of the procedure was decompression.

5. Dr. Pfaff performed the second procedure the next day. Prior to beginning the

operation, Dr. Pfaff noted there was still cerebrospinal fluid leaking from the

sides of the prior incision and collecting in the Jackson-Pratt reservoir.

Nevertheless, he continued with the surgery and removed, among other things,

the spine sealant from the day before.

6. Ms. Signey allegedly received no relief of her symptoms from the second

surgery. As she claims, her extremities were effectively paralyzed. So, she was

transferred on an emergency basis to Thomas Jefferson University Hospital in

2 Philadelphia, Pennsylvania, where orthopedic surgeons performed a posterior

cervical decompression and instrumented fusion. These procedures (and the

physical therapy that followed) allowed Ms. Signey to recover some motor and

sensory capability in her upper and lower extremities, although she alleges

significant deficits still remain.

7. Initially, Ms. Signey filed this claim against the Defendants on October 26, 2020.

She retained Dr. Theodore as her expert witness shortly after. Dr. Theodore

provided his narrative report on November 1, 2021.

8. The Defendants took Dr. Theodore’s deposition on April 6, 2023. At the

conclusion of the deposition, Dr. Theodore exercised his right to review his

deposition transcript. As he did so, the Defendants moved for summary

judgment on April 14, 2023. Nearly a month later, Dr. Theodore submitted an

errata sheet that Defendants contend substantively supplemented and changed

his deposition testimony. So, the Defendants filed this motion in response.

The corrections on the errata sheet Defendants move to strike are as follows:

Transcript Question Answer Desired Corrections 89:18 – 90:6 Q. My apologies A. On the CT scan A. On the CT scan (statement). obviously we talked obviously we talked about bony about bony osteophyte and osteophyte and even in the scan even in the scan report and it's report and it's obvious to look at, obvious to look at, even the CT report even the CT report said there is still said there is still osteophyte there osteophyte there and there is and there is evidence of seeing a evidence of seeing a 3 cord compression cord compression and recommend and recommend MRI. Okay. The MRI. Okay. The MRI was done and MRI was done and what the MRI scan what the MRI scan shows is, you know, shows is, you know, new high signal new high signal edema acute type edema acute type injury in the spinal injury in the spinal cord at C6-7 with cord at C6-7 with significant ongoing significant ongoing compression of the compression of the spinal cord. Worse spinal cord. Worse than it was than it was preoperatively. preoperatively. That is a deviation from the standard of surgical care – that is negligence. 90: 12 – 91:1 Q. In your opinion, A. So I think we A. So I think we can the went back and said went back and said postoperative part of the issue is, I part of the issue is, I changes that we see mean, again, we mean, again, we on the MRI and CT know that you can know that you can of the 7th and or have a worsening have a worsening 8th, can that be due after surgery. But I after surgery. But I to anything other guess the part I guess the part I than negligence in have an issue with have an issue with your opinion? is that we have this is that we have this imaging which imaging which shows that the shows that the compression is compression is ongoing and severe, ongoing and severe, to me worse than it to me worse than it was before the was before the surgery, and that to surgery, and that to me represents an me represents an emergency. emergency caused by negligence. 92: 1 - 20 Q. Let me get the A. Hold on. Let's A. Hold on. Let's right words. I get this right for get this right for apologize then. one second here. So one second here. So Hang on so I can certainly it is certainly it is 4 get your report. improper to damage improper to damage Well I won't fight the spinal cord. Can the spinal cord. Can with you on it but it happen? Yes, but it happen? Yes, but it's in your report. it's not proper. It's it's not proper. It's So let me pull it up. not what we are not what we are trained to do. It's trained to do. It's not what we do. It's not what we do. It's not our intent. So not our intent. And we're working in a where there is tight space and more compression obviously present post- something surgery that is a happened. Not negligent proper. There was deviation. some manipulation, something So we're working in happened at the a tight space and time of surgery. So, obviously again, the patient something now wakes up with happened. Not a deficit and we've proper. There was got new imaging. some manipulation, That's where we something are. So I would say happened at the improper. Is that time of surgery. So, negligent in and of again, the patient itself? Maybe not. now wakes up with a deficit and we've got new imaging. That's where we are. So I would say again where more 6 compression was caused by the procedure that is negligent. 93: 9 - 19 Q. Okay. So that's A. Yes. A. Yes. In addition what we're on right to severe now. The failure of compression Dr. Pfaff in this caused during the particular case is his procedure. failure to appreciate the CT, the MRI 5 and this patient who is waking up with this lower extremity weakness and I don't mean to confine it to that, failing to appreciate that and then going back and immediately addressing that. That's the failure of Dr. Pfaff on standard of care in your mind; fair? 95: 17 – 21 Q. And then that's A. Yes. A. Causing severe sort of the first compression was deviation by Dr. first deviation. Pfaff in your mind in terms of having the information to get her back. Is that a fair statement? 100: 18 – 101: 7 Q. And, likewise, A. Well if the same A. Well if the same even if the very first thing happened, in thing happened, in surgery on the 7th, other words, if the other words, if the the one done at 3:30 same operation same operation or so, had been occurred and occurred and severe done perfectly with something compression a full happened during happened during decompression in surgery which I'm surgery which I'm your mind, she still calling improper in calling improper in may have had some that we don't want that we don't want permanent that to be -- it's not that to be -- it's not neurologic sequela; proper to bang into proper to bang into correct? the spinal cord, so the spinal cord, so something something happened. So that's happened. So that's what I'm calling what I'm calling improper. improper and negligent. 101: 12 - 17 Q. I understand. I A. That's correct. A. In this instance understand. When causing severe 6 you say improper compression was you are equating negligent. improper to we don't want that to happen, but improper does not, per se, equal negligence in your mind?

9. While Delaware Superior Court Civil Rule 30(e) allows a deponent to make

changes to their deposition testimony in form or substance, it does not allow

them to improperly alter what they testified to under oath.1 “A deposition is not

a practice quiz. Nor is it a take home exam.”2 An errata sheet exceeds the scope

of the type of revisions contemplated by Rule 30(e) when the corrections “are

akin to a student who takes her in-class examination home, but submits new

answers only after realizing a month later the import of her original answers

could possibly result in a failing grade.”3

10. In support of their position, Defendants primarily rely on this Court’s recent

decision in Alberts v. All About Women.4 The Alberts Court was concerned with

a defense expert’s substantive testimonial changes to deposition testimony after

the plaintiff’s expert had taken time (at the plaintiff’s expense) to review the

defense expert’s deposition and prepare a Supplemental Disclosure.5 Finding

1 Alberts v. All About Women, 2020 WL 6588643, at *3 (Del. Super. Nov. 10, 2020). 2 Id. (citations omitted). 3 Id. 4 See generally id. 5 Id. at *7.

7 the changes improper, Alberts concluded that “[a] tactic, the sole purpose of

which is to subvert a procedural device prescribed by the Court’s rules of civil

procedure, simply cannot be countenanced.”6

11. The facts in this case, however, lead to a different conclusion from the one

reached in Alberts. As presented above, Dr. Theodore used the word “improper”

multiple times during his deposition when describing the trauma that Dr. Pfaff

allegedly caused to Ms. Signey’s spinal cord. But his errata sheet does not

attempt to rewrite his deposition testimony. Instead, it merely clarifies the

conclusions in his written narrative report that “the only cause of [Ms. Signey’s]

spinal cord compression [is] from direct injury to the spinal cord or nerves,

incomplete decompression of the spinal cord or nerves, and potentially an

excessive improper use of [spine sealant].” Those conclusions have been a

prominent part of this case record since November 2021.

12. Dr. Theodore’s errata sheet does not attempt to “game the system.” At most, it

suggests that when surgical injury causes additional post-surgery spinal

compression, that is a deviation from the accepted standard of care. Given that

Dr. Theodore has maintained this position for nearly two years, Defendants’

claim that the errata sheet will cause them prejudice is rejected.

6 Id.

8 13. The Court will permit thorough cross-examination of Dr. Theodore at trial.

Whether his credibility is impaired by reason of the changes he has made to his

sworn testimony will be a matter for the jury, and not the Court, to decide.

14. Based on the foregoing, Defendants’ motion to strike errata changes is

DENIED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

Original to Prothonotary cc: Leroy Tice, Esquire Jonathan Landua, Esquire Gregory McKee, Esquire