Opinion
C.A. No. 00C-03-048-JTV.
Submitted: July 28, 2000.
Decided: October 31, 2000.
Upon Consideration of Defendant's Motion For Summary Judgment DENIED
Stephen A. Hampton, Esq., Dover, Delaware. Attorney for Plaintiff.
Jeffrey A. Young, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of defendant Picker International Sales Corporation's motion for summary judgment, the plaintiffs response thereto, and the record of this case, it appears that:
1. Defendant Picker International Sales Corporation ("Picker") seeks summary judgment against the plaintiff on the grounds that the plaintiffs claim is barred by the statute of limitations. On April 11, 1997, the plaintiff, Francis T. McClements ("McClements") was injured in an automobile accident. He was taken to Kent General Hospital where a cranial CT scan without contrast was performed using a PQ 2000 CT System, serial number 4282, designed and manufactured by Picker, and sold to Kent General Hospital. Victoria E. Kong, M.D., ("Dr. Kong"), the interpreting radiologist, reviewed the cranial CT scan and reported that the scan demonstrated a large subdural hematoma. Based upon Dr. Kong's analysis, Dr. Narayan, the attending neurosurgeon, performed a craniotomy on plaintiff which revealed no subdural hematoma. Plaintiffs complaint asserts that the CT scan did not show a large right side subdural hematoma, but "subsequent investigation with CT phantoms demonstrates this to represent a reproducible imaging artifact."
Complaint at paragraph 10.
2. Picker allegedly knew by April of 1995 that the CT equipment used at Kent General Hospital to perform the CT scan on plaintiff could "produce a halo near the interior of the bone/brain interface due to the absence of attenuation of the edges of the beam relative to the small object imaged" when a patient's head is scanned in the full field mode. In a clinical equipment update bulletin, Picker recommended that head trauma patients be scanned in Half Field Mode, but if necessary "in severe trauma situations involving a support devise extending beyond the Half Field, place the device on the table top, position the patient's head in the center of the gantry and scan in the FULL FIELD mode." However, Kent General Hospital allegedly did not receive a copy of the April 1995 bulletin until after the plaintiffs CT scan. A Picker engineer, who was contacted by the hospital on the morning of plaintiffs surgery, was also unaware of the imaging artifact problem identified in the April 1995 bulletin. Plaintiff was told that he did not have a subdural hematoma on April 19, 1997.
3. Plaintiff filed suit against Dr. Kong and Kent Diagnostic Radiology Associates, Inc., on March 30, 1999. He first became aware of the above-described issues concerning the functioning of the PQ-2000 CT during discovery at Dr. Kong's deposition on January 12, 2000. Also, this was the first time plaintiff became aware that Dr. Kong and Kent General Hospital were placing blame for this incident on Picker. The plaintiff then filed suit against Picker on March 29, 2000.
4. Picker argues that plaintiffs suit was not brought within the applicable statute of limitations. It contends that the action is clearly barred by the statute of limitations unless the "time-of-discovery" exception is applicable. It further contends that the "time-of-discovery" exception is not applicable to this case because plaintiff has failed to meet the prerequisites for this exception. Those prerequisites are that the injury must be inherently unknowable and the plaintiff must be blamelessly ignorant of the injury in order to qualify for the time-of-discovery exception. Picker believes that those conditions are absent, and thus, the exception is inappropriate. 5. In plaintiffs response, he concedes that were it not for the application of the time-or-discovery rule, his complaint against Picker would be untimely. The plaintiff argues, however, that the "time-of-discovery" exception is applicable in this case.
Layton v. Allen, Del. Supr., 246 A.2d 794 (1968)
6. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. When the facts permit a reasonable person to draw but one inference, the question becomes one for decision on summary judgment. However, if from the evidence produced, there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. In discharging this function, the court must view the evidence in the light most favorable to the nonmoving party. In doing so, the court will accept as established all undisputed factual assertions made by either party, and accept the non-movant's version of any disputed facts.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1087 (1994).
Frelick v, Homeopathic Hops. Ass'n, Del. Super., 150 A.2d 17 (1959); Wooten v. Kiger, Del. Supr., 226 A.2d 238 (1967).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99-100 (1992).
7. The "[a]pplication of the "time-of-discovery" rule is limited, and each case must stand and fall on its own facts." It is applicable to injuries which are inherently unknowable and sustained by a blamelessly ignorant plaintiff. "The question to be answered now is whether [Plaintiff] should have been on notice that [an improper surgery was] attributable to defects in [the CT scanner]." In S R Associates the time-of-discovery rule was applied where the plaintiff failed to attribute plumbing failures to defects in a polybutylene pipe. Judge Quillen determined that the plaintiff may have failed to see the connection between plumbing leaks and the defective pipe where an alternative explanation could have been faulty installation. It appears that the same or a similar rational may be applicable to the case at bar. While the plaintiff was presumably aware by April 19, 1997 that he had had a craniotomy because of a perceived subdural hematoma, but that the operation revealed that there was no subdural hematoma, he may not have been on notice that this occurrence was the product of a defective CT scanner where an alternative explanation is the alleged medical malpractice of Dr. Kong. "Applying a reasonable person standard, and viewing the facts in a light most favorable to the plaintiff, a dispute still exists as to whether [Plaintiff], in the exercise of due diligence, should have attributed [an improper surgery] to a defective [CT scanner]"; and when the cause of action was or should have been "discovered." Therefore, the motion will be denied at this time. This order is entered without prejudice to the defendant to renew this issue by an appropriate motion after discovery is completed or at trial.
Ruger v. Funk III, Del. Super., C.A. No. 93C-04-210, J. Lee (Jan. 22, 1996) (quoting Isaacson, Stolper Co v. Artisan's Savings Bank, Del. Supr., 330 A.2d 130, 133 (1974).
Kaufman v. C.L. McCabe Sons, Inc., 603 A.2d 831, 835 (1992) (citing Layton v. Allen, Del. Supr., 246 A.2d 794 (1968).
S R Associates v. Shell Oil Company. Del. Super., 725 A.2d 431, 439 (1998).
See Also Pack Process, Inc., v. Celotex Corp., Del. Super., 503 A.2d 646, 650-51 (1985) (applying the time-of-discovery rule when plaintiff failed to attribute a leaking roof to defective roofing materials); and Affordable Home Enterprises, Inc. v. Nelson, Del. Super., C.A. No. 91C-08-024, Steel V.C. 1994 WL 315227 (May 25, 1994) (ORDER) (refusing to grant summary judgment on a time-of-discovery issue when facts were in dispute concerning whether plaintiff should have attributed septic pipe clogs to a defective septic system).
S R Associates, at 439.
8. Therefore, the defendant's motion for summary judgment is denied.
IT IS SO ORDERED.