Opinion
C.A. No. 98C-11-163-WTQ.
Argued: July 11, 2000.
Decided: July 11, 2000.
Letter Opinion and Order on Defendant Christiana Care's Motion for Summary Judgment MOTION GRANTED .
Dear Counsel:
This is the Court's Letter Opinion and Order on Defendant Christiana Care Health Services Inc.'s Motion for Summary Judgment. For the reasons stated herein, that Motion is GRANTED.
FACTS
This is a medical negligence case. On December 7, 1997, Mrs. Phyhis Railson underwent a hysterectomy which was performed by Dr. Lynn Talley. It is alleged that because of the surgery, Mrs. Railson sustained injuries while under general anesthesia as a result of Dr. Talley's failure to reposition her while performing the nearly six hour procedure.
There is some dispute in the record as to the length of the actual surgery. At oral argument, Mr. Castle and Mr. Fern both represented that the surgery performed took in the neighborhood of six hours.
In this Motion, Christiana Care argues that the Plaintiffs' claims against it must fail because there is no expert medical evidence to support the allegations of medical negligence. Christiana Care states that the Plaintiffs have not offered an expert witness on the issues of the standard of care and causation, other than Dr. Talley's suggestion that the "circulating nurse" was responsible for positioning the patient and that the nurse positioned Mrs. Railson incorrectly. Talley Dep. at 61, 62. Christiana Care argues that Dr. Talley's statements do not rise to the level of an expert opinion expressed with reasonable medical probability, and, because expert testimony has not been provided as required by 18 Del. C. § 6853, the medical negligence claims against it must be dismissed.
Plaintiffs argue that their expert opines that someone, whether it be Dr. Talley or the nursing staff, must reposition a patient appropriately during a lengthy surgery of this kind. Plaintiffs argue that their expert's testimony, in conjunction with Dr. Talley's statements, satisfy their burden of establishing a prima facie case under Delaware law. The Plaintiffs suggest they have met their burden in a manner somewhat akin to res ipsa loquitur.
STANDARD OF REVIEW
When considering a Motion for Summary Judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist. Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., Del. Super., 312 A.2d 322, 325 (1973). If, after viewing the record in a light most favorable to the non-moving party, the Court finds that there are no genuine issues of material fact, Summary Judgment will be appropriate. Id. Summary Judgment will not be granted if the record indicates 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 law to the circumstances. Ebersole v. Lowengrub, Del. Supr., 4 Storey 463, 180 A.2d 467 (1962).
DECISION
The production of expert medical testimony is an essential element of Plaintiffs' medical negligence case. Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991). Title 18 Del. C. § 6853 of the Delaware Code, dealing with expert testimony in medical negligence cases, states:
§ 6853 Requirement of expert medical testimony.
No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death, except that such expert medical testimony shall not be required if a medical negligence review panel has found negligence to have occurred and to have caused the alleged personal injury or death and the opinion of such panel is admitted into evidence; provided, however, that a rebuttable inference that personal injury or death was caused by negligence shall arise where evidence is presented that the personal injury or death occurred in any 1 or more of the following circumstances: (1) A foreign object was unintentionally left within the body of the patient following surgery; (2) an explosion or fire originating in a substance used in treatment occurred in the course of treatment; or (3) a surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient's body. Except as otherwise provided herein, there shall be no inference or presumption of negligence on the part of a health care provider.
A plain-language reading of the statute requires that no liability shall be based up on asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury. In the current case, it is clear that the Plaintiffs have not put forth expert testimony that specifically deals with the standard of care for nursing negligence. Moreover, there is little more than speculation that the patient was mispositioned.
All written contracts, as well as legislative acts, are to be read, understood and interpreted according to the plain and ordinary meaning and import of the language employed in them. Neary v. Philadelphia, W B.R. Co., Del. Ct. Err, and App., 7 Houst. 419, 9 A. 405, 407 (1887); Hudson Farms Inc. v. McGrellis, Del. Supr., 620 A.2d 215, 217 (1993) (illustrating that words in a statute are to be given their common and ordinary meaning).
From what has been provided, the Plaintiffs' expert has suggested that the patient should have been repositioned during surgery but has not specifically stated that a nurse should have moved her. Nor has the expert, Dr. David Powers, ever stated the appropriate standard of care for nurses or Christiana Care. Dr. Talley herself, notwithstanding her status as a party, could be an expert, but her deposition testimony does not have the foundation necessary for an expert opinion because it is not specific as to Christiana Care's negligence or as to any nurse's negligence. Her testimony is hardly more than innuendo and is not directed to the expert issues in an acceptable form under the statute. Furthermore, Christiana Care is entitled to advance notice of expert testimony against it and no such testimony at this late stage has come forth. On the limited information put before the Court, there is no expert testimony sufficient to prove nursing negligence or negligence of Christiana Care of any kind. Thus, Christiana Care's Motion for Summary Judgment must be GRANTED. IT IS SO ORDERED.