Opinion
C.A. No. 96C-04-038
Submitted: July 19, 2000
Decided: October 31, 2000
Upon Consideration of Defendant's Motion For Judgment As A Matter of Law and/or A New Trial DENIED
Stephen A. Hampton, Esq., Dover, Delaware, Attorney for Plaintiffs.
Mason Turner, Esq., Wilmington, Delaware, Attorney or Defendant.
ORDER
Upon consideration of the defendant's motion for judgment as a matter of law and/or a new trial, the plaintiffs' response and the record in this case, it appears that:
1. The plaintiff, Robert Miller, underwent a biopsy as part of an evaluation for prostate disease. The defendant, Medlab, Inc., evaluated the biopsy and noted that a lesion qualified as a small cell cancer. Because of that statement, Mr. Miller started chemotherapy. He wanted a second opinion and a request was made to Medlab that it forward the specimen to a doctor, whose name was provided, for that second opinion. Medlab neglected to send the specimen off in a prompt manner, and it wasn't until about six weeks or two months later that it finally sent the slide on. In the meantime, Miller continued with his chemotherapy. The second opinion revealed that there wasn't any small cell cancer after all. The plaintiffs filed suit alleging that Medlab was negligent in not forwarding the slide when it was asked to do so, and that as a result Mr. Miller went through at least some of his chemotherapy unnecessarily with consequent debilitating side effects and pain and suffering. The jury returned a verdict of $50,000 for Mr. Miller and $25,000 for Ms. Miller for loss of consortium. The defendant now moves for a judgment as a matter of law and/or a new trial. For the reasons which follow, the motion is denied.
2. Mr. Miller was evaluated for prostate disease by Dr. Kraus, a urologist. He underwent a biopsy procedure of his prostate gland and the resulting specimen was forwarded to defendant Medlab for interpretation. Defendant's pathologist, Dr. Boyd, read the slide and indicated the specimen revealed adenocarcinoma. In addition, in the `comment field' of the pathology report, Dr. Boyd stated the lesion qualified as an undifferentiated small cell cancer. Consequently, in reliance on the small cell cancer statement, Miller was placed on a particular chemotherapy regimen by his oncologist, Dr. Foote. If the diagnosis was solely an adenocarcinoma, the treatment would have been different. Due to the fact that small cell carcinoma is both rare and deadly, Dr. Foote immediately sought to have a portion of the specimen forwarded to Dr. Atkinson of the Medical College of Pennsylvania for a second opinion. According to evidence presented at trial, the usual turn around time for having this completed was one week, at most. However, in this case the specimen was not forwarded despite numerous requests made by Dr. Foote's office. A delay of between six to eight weeks occurred before defendant sent the slide to Dr. Atkinson. Miller received four chemotherapy treatments designed to treat small cell carcinoma. In addition, Miller was informed that his prognosis was grave and he had a life expectancy of only a few months. Finally, when Dr. Atkinson received and read the slide, she determined that Miller did not have the dreaded small cell carcinoma, but rather, the less morbid adenocarcinoma. Miller's treatment was automatically altered as a result and he was placed on treatment appropriate for this type of malignancy. Depending upon one's view of the evidence, at least two and as many as three of the chemotherapy sessions could have been avoided if Medlab had forwarded the slide in the normal one week, two at the most, turnaround time. Consequently, Miller brought suit against defendant Medlab for negligence, and complained that but for the delay in the transmission of the pathology slide, he would not have undergone unnecessary chemotherapy nor been subjected to the emotional distress incident to the small cell cancer diagnosis. Mrs. Miller alleged that Medlab's negligence in this regard caused her to experience a loss of consortium with her husband. At trial, the plaintiffs presented testimony from the plaintiffs, Dr. Foote, Dr. Hamilton of Medlab and Betty Brittingham, who testified regarding the normal turnaround time for specimen transferral from Medlab to another medical consultant. The defendant presented testimony from Dr. Boyd. Dr. Foote's testimony included evidence as to the effects of the chemotherapy ordered for Miller. Dr. Hamilton, a Medlab pathologist, disclosed that Medlab was extremely busy and experienced difficulty in fulfilling its work obligations during the relevant time period.
3. In support of its motion the defendant contends that the plaintiffs' case is premised on a claim that Dr. Boyd, Medlab's employed pathologist, misinterpreted the biopsy specimens and/or issued a confusing report indicating that small cell cancer was present; that therefore the plaintiff was required to present expert testimony on the issue of medical negligence and did not do so; that the plaintiffs failed to establish causation as required by 18 Del. C. § 6853; that even if this is not a medical negligence case the plaintiffs failed to prove a duty on the part of Medlab and a breach thereof; that the plaintiffs failed to prove what chemotherapy would or could have been avoided if the specimen had been forwarded sooner and that the jury was, therefore, permitted to speculate as to what damages the plaintiffs suffered; that the testimony of damages was generalized testimony as to the unpleasantness of chemotherapy which permitted the jury to speculate; that the testimony concerning Ms. Miller's loss of consortium consisted for the most part of testimony of her distress and that the jury was improperly influenced by sympathy; and that the verdict was excessive.
4. In response, the plaintiffs contend that their claim was not premised on Dr. Boyd's interpretation of the biopsy specimen, but on Medlab's failure to forward the slide in a timely manner for a second opinion; that this is not a medical negligence case at all; that the issue of the forwarding of the slide is not one involving medical skill, care or judgment; that they proved all the elements of their claim premised on a duty on the part of Medlab to forward the slide for a second opinion, the negligent failure to do so when requested, and resulting damages; and that the award was not excessive and should not be set aside.
5. A court charged with deciding whether to grant a judgment as a matter of law pursuant to Super. Ct. Civ. R. 50(b) does not weigh the evidence but views the evidence in the light most favorable to the non-moving party and, drawing all reasonable inferences therefrom, determines if a verdict may be found for the party having the burden. When considering a motion for a new trial, a verdict should be set aside only when it is against the weight of the evidence, or where the amount of an award "is so grossly out of proportion to the injuries suffered as to shock the Court's conscience and sense of justice." Only when the court finds that the jury verdict is manifestly against the weight of the evidence should the verdict be set aside under Super. Ct. Civ. R. 59.
Willey v. Pathmark Stores, Inc., Del. Super., C.A. No. 96C-11-57 RRC, Cooch, J. (May 15, 2000) (Mem. Op.) quoting, McCloskey v. McKelvey, Del. Super., 174 A.2d 691, 693 (1961).
James v. Glazer, Del. Supr., 570 A.2d 1150 (1990).
Young v. Frase, Del. Supr., 702 A.2d 1234 (1997).
Messick v. Star Enterprise, Del. Super., C.A. No. 93C-03-14, Carpenter, J. (Jan. 30, 1988) (Mem. Op.) at 2 (citing Storey v. Camper, Del. Super., 401 A.2d 458, 465 (1979)).
6. Notwithstanding the defendant's contention that the plaintiff's claim is premised on Dr. Boyd's interpretation of the specimen, I agree with the plaintiffs that their case was predicated upon the alleged neglect in forwarding the biopsy specimen for a second opinion. The plaintiffs' theory of the case was that Medlab was under a duty to forward the specimen for a second opinion when it was asked to do so; that the standard of care was that it do so within one week, two at the most; that it negligently failed to do so for as long as two months; that this negligence was the proximate cause of Mr. Miller undergoing chemotherapy unnecessarily; and that Mr. Miller suffered damages in the form of harmful side effects upon the body and associated pain and suffering. In his opening and closing remarks and in his presentation of the evidence, plaintiffs counsel made it clear to the jury that their suit was not based upon Dr. Boyd's interpretation of the specimen, but on the defendant's failure to forward it on for a second opinion. Neither the plaintiffs, nor their witnesses or attorney ever expressed any criticism of Dr. Boyd's interpretation. I conclude that the plaintiffs theory of the case as I have just summarized it was clearly expressed to the jury and that there is no reason to believe that the jury's verdict was improperly influenced by any inferences relating to Dr. Boyd's interpretation of the specimen. Therefore, to the extent that the defendant contends that the requirements of 18 Del. C. § 6853 are applicable because the case is premised on the conduct of Dr. Boyd, the contention is rejected.
7. At trial and in their response to the motion, the plaintiffs argue that Medlab is not a health care provider because it was not licensed under Title 24, excluding Chapter 11 thereof, or Title 16. However, no evidence was offered as to what provision of law Medlab might have been licensed under. The Court, therefore, cannot conclude that Medlab was not a health care provider on this basis.
8. It is noted that a decision of the Supreme Court of Delaware and a prior decision of this court have each held that the term "health care provider" applies only to "those professionals in direct personal contact with the patient and whose insurance malpractice premiums were of dominant concern to the General Assembly." In this case the biopsy was taken by Mr. Miller's doctor, Dr. Klaus, who forwarded it to Medlab for evaluation. Medlab forwarded the results back to one of the plaintiffs doctors, and subsequently forwarded the specimen on for a second opinion directly to the doctor who was to give that opinion. Medlab was not in direct personal contact with the patient, and on the basis of the cited authorities, it would appear that Medlab was not a health care provider under Chapter 68 of Title 18.
Blood Bank of Delaware v. Price, Del. Supr., 748 A.2d 406 (2000); Cole v. Delaware League for Planned Parenthood, Del. Supr., 530 A.2d 1119; Keys v. Lynam, Del. Super., 1982 Del. Super. Lexis 1014, C.A. No. 79C-AU-25, Walsh, J. (Jan. 12, 1982).
9. However, I conclude that the plaintiffs case satisfied the expert medical testimony requirements of 18 Del. C. § 6853 and § 6854 in any event. Among plaintiffs witnesses was Elizabeth Brittingham, a registered nurse who at the time was working in Dr. Foote's office. Ms. Brittingham assisted the doctor in the treatment of cancer patients. It was apparent that she had substantial experience. It was also apparent from her testimony that she had regular contact with labs, such as Medlab, in connection with Dr. Foote's patients. She testified that a request for a second opinion was routinely done and that the labs routinely forwarded the specimens on for a second opinion when asked to do so. She further testified that the usual turnaround time was a week, two at the most. I am satisfied that she was a qualified medical expert on that limited issue and that her testimony established the standard of care applicable to Medlab regarding its obligation to forward specimens on for second opinions. I am also satisfied that her testimony established Medlab's deviation from that standard of care. I am also satisfied that the testimony of Dr. Foote established that the plaintiff did suffer personal injury in the form of harmful side effects of the chemotherapy which were causally related to Medlab's deviation from the standard of care.
10. As to the remainder of the defendant's contentions, I find that the evidence presented by the plaintiffs, particularly the testimony of Elizabeth Brittingham and Dr. Foote, created a sufficient evidentiary basis for the jury to conclude that Medlab did have a duty to forward the specimen for a second opinion within about a week of being requested to do so, two at the most, and that it breached that duty. Viewing the evidence in the light most favorable to the plaintiffs, the jury could have concluded that at least two of the four chemotherapy sessions could have been avoided if Medlab had discharged its duty. There was evidence from which the jury could conclude that Mr. Miller suffered significant physical pain and suffering and mental distress which could have been avoided if Medlab had not been negligent in forwarding the specimen for the second opinion. I have also carefully considered the award for Ms. Miller's loss of consortium. I am satisfied that there was evidence from which the jury could have concluded that Ms. Miller's did suffer significant loss of consortium during the period of time involved. I conclude that the jury's verdict is not manifestly against the weight of the evidence and that neither damage award is legally excessive.
11. Therefore, the defendant's motion for judgment as a matter of law and/or a New Trial is denied IT IS SO ORDERED.