Opinion
C.A. No. 09C-08-102 PLA.
Submitted: September 10, 2010.
Decided: November 10, 2010.
ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
DENIED.
This 10th day of November, 2010, it appears to the Court that:
1. In this action for medical malpractice and wrongful death, family members of Robert J. Seinsoth, Sr. ("Seinsoth") allege that Defendant C. Richard Sharbaugh, D.O. ("Dr. Sharbaugh") negligently failed to order additional testing and consultation following abnormal results on a 2003 CT scan of Seinsoth's abdominal region and thereby caused Seinsoth's death of liver cancer more than five years later. Defendant has moved for summary judgment on the basis that the statute of limitations applicable to medical malpractice actions bars Plaintiffs' claims.
2. As Seinsoth's primary care physician, Dr. Sharbaugh ordered a CT scan of Seinsoth's abdominal and pelvic region after Seinsoth complained of epigastric pain in the spring of 2003. The CT scan was conducted on April 25, 2003, and the resulting report noted "a very vague area measuring 2 x 1 cm, ovoid in the inferior part of the right lobe of the liver, suspect for a small focal lesion." Five years prior, an ultrasound of Seinsoth's abdomen performed in connection with a gallbladder operation had located a lesion on his liver, but the 2003 CT report noted that "it is difficult to correlate" the suspected lesion with those 1998 findings. Accordingly, the report suggested that "an ultrasound examination could be performed to correlate with the study of five years ago to see whether this is a stable lesion. If there is uncertainty, then gadolinium enhanced MRI examination may be of value."
Def.'s Mot. for Summ. J., Ex. B.
Id.
Id.
3. According to Dr. Sharbaugh, he reviewed the 2003 CT report, as well as the 1998 operative report and discharge summery from Seinsoth's gallbladder operation, and decided that if the lesion identified in 1998 had been unstable, it would have declared itself on the 2003 CT scan. Dr. Sharbaugh therefore found the "vague area" identified in the 2003 CT scan to be insignificant. Dr. Sharbaugh recounts that he shared this information with Seinsoth, and that Seinsoth's epigastric complaints resolved.
4. From the time of the CT in April 2003 through January 2008, Seinsoth went to thirty-three office visits with Dr. Sharbaugh. Dr. Sharbaugh asserts that none of Seinsoth's complaints during these appointments involved abdominal issues, and thus there was no cause for investigation of the lesion.
5. In August 28, 2007, Dr. Sharbaugh discovered a suspected umbilical hernia during a routine examination and referred Seinsoth to a surgeon. As part of the surgeon's evaluation, abdominal imaging was performed on February 26, 2008, which revealed a necrotic mass in the right hepatic lobe. A biopsy identified the mass as cholangiocarcinoma. Seinsoth died of his cancer in October 2008.
6. Plaintiffs filed this action on August 11, 2009. By their Complaint, Plaintiffs allege that Dr. Sharbaugh failed to inform Seinsoth of "the adverse results" of the April 2003 CT scan, failed to order necessary follow-up testing, and failed to order an appropriate referral. Plaintiffs assert that these omissions "were repeated and continued on 33 subsequent visits, including up until January 25, 2008," during which Dr. Sharbaugh failed to provide "adequate and appropriate medical care necessary to timely diagnose and treat" Seinsoth's condition.
Pls.' Compl. ¶ 15.
Id. ¶¶ 15-16.
7. Dr. Sharbaugh has moved for summary judgment based upon 18 Del. C. § 6856, the statute of limitations for personal injury claims based upon medical negligence. Dr. Sharbaugh argues that "[t]his case presents a single issue of alleged negligence, in April 2003, when [he] concluded that the lesion seen by the radiologist on the April 25, 2003 CT scan was benign and did not order follow up testing." According to Dr. Sharbaugh, this single affirmative act cannot support a theory of continuous medical negligence extending through all of his subsequent appointments with Seinsoth. Even if he negligently misdiagnosed Seinsoth in April 2003, Dr. Sharbaugh denies that Seinsoth's long-term reliance upon that misdiagnosis can be considered "an act of the healthcare provider" that would provide a basis for liability under Delaware law. Thus, Dr. Sharbaugh asserts that the Complaint was untimely filed under either the "basic" two-year limitation period or the three-year limitation period applicable to "inherently unknowable injuries" under § 6856(1).
Def.'s Mot. For Summ. J. ¶ 7.
Id. ¶ 13.
Id. ¶¶ 8-9. Defense counsel also filed a response to Plaintiffs' opposition to the pending summary judgment motion. Because the Superior Court Civil Rules and the Superior Court's Civil Case Management Plan do not call for reply briefing in the absence of a briefing schedule, this filing will be disregarded.
8. In response, Plaintiffs argue that Dr. Sharbaugh's duty to provide Seinsoth with accurate information about his CT results and to order appropriate follow-up "continued throughout the ensuing doctor-patient relationship and did not cease the moment the doctor misinformed his patient." Because Dr. Sharbaugh's alleged "act of omission . . . occurred in the context of a continuing doctor-patient relationship that encompassed 33 separate office visits," Plaintiffs rely upon the doctrine of continuous negligent medical treatment to toll the running of the limitation period.
Pls.' Resp. 2.
Id. at 1-3.
9. When considering a motion for summary judgment, the Court examines the record to ascertain whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. Initially, the burden is placed upon the moving party to demonstrate that his legal claims are supported by the undisputed facts. If the proponent properly supports his claims, the burden "shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder." Summary judgment will only be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute and judgment as a matter of law is appropriate. Furthermore, summary judgment is inappropriate "if, upon an examination of all the facts, it seems desirable to inquire thoroughly into them in order to clarify the application of the law to the circumstances."
Super. Ct. Civ. R. 56(c).
E.g., Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del. Super. 2005).
Id. at 880.
Id. at 879-80.
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
10. In certain circumstances, the defendant-medical provider in an action for medical malpractice must support his motion for summary judgment with medical expert affidavits before the burden may be shifted to the nonmoving party. Where the merits of the defendant's summary judgment motion depend upon an evaluation of his compliance with the applicable standard of care, the motion must be supported by "proof that the defendant conformed to the requisite standards of care under the circumstances at issue." To provide such proof and shift the burden to the nonmoving party, the defendant is required to show "proof [from an expert witness] of the relevant medical standards followed by physicians in good standing in the community under like circumstances and a showing that the defendant's conduct was in conformity with those standards."
See, e.g., Ogden v. Gallagher, 591 A.2d 215, 222 (Del. 1991); Bissel v. Papastavros' Assocs. Med. Imaging, 626 A.2d 856, 860 (Del. Super. 1993), aff'd, 663 A.2d 488 (Del. 1995).
Baylis v. Wilm. Med. Ctr., 477 A.2d 1051, 1057 (Del. 1984); see also Ogden, 591 A.2d at 221-222.
Ogden, 591 A.2d at 222 (quoting Baylis, 477 A.2d at 1057) (alteration in original).
11. Pursuant to 18 Del. C. § 6856, the statute of limitations for medical malpractice actions varies depending upon whether the injury is or should be discovered at the time of the alleged wrongful act, or whether the injury is "inherently unknowable" until a later time. Thus, § 6856 provides, in relevant part, as follows:
No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of medical negligence shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that:
(1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter[.]
Where a plaintiff states a cause of action for continuous negligent medical treatment, the limitation period "begins to run for two years from the last act in the negligent continuum prior to the point in time when the plaintiff has actual knowledge of the negligent course of treatment or in the exercise of reasonable diligence could have discovered the negligent course of treatment." However, the doctrine of continuous negligent medical treatment will only affect the statute of limitations if it " is supported by the facts in the record." Those facts "must establish that the treatment was inextricably related so as to constitute one continuing wrong." In a claim for continuous negligent medical treatment, the "last act" which triggers the running of the statutory period must constitute "an affirmative happening or event." Such an affirmative happening can include an office visit. An act of omission may support a medical malpractice claim if it occurs within the context of an affirmative happening or event. Thus, determining the limitation period for a claim of continuous negligent medical treatment involves a two-part inquiry, by which the Court must determine (1) the date upon which the plaintiff had actual or constructive knowledge of the negligent course of treatment, and (2) the date of the "last act" in the negligent continuum immediately prior to the date that the patient received actual or constructive knowledge of the negligent course of treatment.
Ewing v. Beck, 520 A.2d 653, 663 (Del. 1987).
Id. at 665.
Benge v. Davis, 553 A.2d 1180, 1183 (Del. 1989).
Ogden, 591 A.2d at 220 (citing Benge, 553 A.2d at 1185).
Ewing, 520 A.2d at 667.
Id.
Benge, 553 A.2d at 1184.
12. Dr. Sharbaugh contends that the sole negligent act suggested by Plaintiffs' case occurred in April 2003, when he failed to order further evaluation of the lesion. Dr. Sharbaugh's motion, reflecting his own deposition testimony, emphasizes his position that Seinsoth exhibited no clinical signs during those thirty-three visits that would have suggested the need for further follow-up on the April 2003 CT. Plaintiffs argue that Dr. Sharbaugh's conduct over the course of the thirty-three office visits that followed Seinsoth's 2003 CT scan constitute continuing medical negligence. Plaintiffs' Complaint incorporates allegations of continuing medical negligence arising from those office visits.
Pls.' Resp. 2.
13. The Delaware Supreme Court has observed that § 6856 precludes Delaware courts from applying the doctrine of continuous treatment, whereby "the mere fact that there has been continuous treatment, whether negligent or not, for a condition occasioned by a prior negligent act, is sufficient to start the statute of limitations running only at the end of the course of treatment." It follows that where a physician misdiagnoses a patient, the mere existence of an ongoing doctor-patient relationship, without more, will not render each subsequent encounter between the doctor and patient an additional affirmative act or happening along the negligent continuum; rather, it must be shown that the doctor undertook "a continuous course of improper examination or treatment [for the condition upon which the claim is premised] which is substantially uninterrupted."
Ewing, 520 A.2d at 667.
Id. at 663 n. 11.
14. While Dr. Sharbaugh's articulation of the legal principles in dispute hits closer to the mark than Plaintiffs' version, the Court cannot determine from the record presently before it whether or not the underlying facts preclude application of the doctrine of continuous negligent medical treatment as a matter of law. Although the burden of proving a claim for continuous negligence ultimately rests with Plaintiffs, Dr. Sharbaugh's summary judgment motion does not even shift the burden to Plaintiffs to demonstrate that genuine issues of material fact persist.
Plaintiffs' references to the Connecticut case of Bednarz v. Eye Physicians of Central Connecticut, P.C., 947 A.2d 291 (Conn. 2008), and to products liability cases from other jurisdictions concerning manufacturers' duties to warn after sale of a product, provide little or no guidance to the Court, given the existence of relevant Delaware case law and the Delaware Supreme Court's explicit rejection of the continuous treatment and termination of relationship doctrines. See Ewing, 520 A.2d at 661-65.
15. Determining when the statute of limitations commenced running in this case depends upon whether any of Seinsoth's post-CT office visits to Dr. Sharbaugh that occurred prior to the date upon which he became aware of his condition can be considered part of a "continuous course of improper examination or treatment" for his cancer. The Court has not been provided with medical records from those appointments — and moreover, even if those records had been provided, the Court lacks the expertise to evaluate the significance of Seinsoth's symptoms and clinical status in relation to his eventual cholangiocarcinoma diagnosis or to determine independently whether the standard of care for a physician under the circumstances would have dictated a course of action different from that pursued by Dr. Sharbaugh.
16. Dr. Sharbaugh urges the Court to apply Meekins v. Barnes, in which the Delaware Supreme Court held that "[t]he act giving rise" to a malpractice claim against radiologists who allegedly misread a mammogram that should have been considered suspicious for breast cancer occurred "at the time of the misdiagnosis and report." However, Meekins is at least potentially distinguishable from this case because Dr. Sharbaugh engaged in evaluations and treatment of Seinsoth after the initial act of alleged misdiagnosis. If Dr. Sharbaugh's appointments with Seinsoth following the April 2003 CT scan involved continued treatment for or improper evaluation of the misdiagnosed condition, Plaintiffs may be able to establish continuous negligent medical treatment such that the limitation period would have commenced after the April 2003 misdiagnosis.
745 A.2d 893, 900 (Del. 2000).
17. Thus, Dr. Sharbaugh's summary judgment motion requires the Court to inquire into the applicable standard of care and whether his conduct conformed with that standard in light of the events of Seinsoth's post-CT appointments. It was therefore his burden to present qualified expert testimony on these crucial points by way of a deposition or affidavit. Dr. Sharbaugh is the defendant in this case. His own deposition testimony to the effect that none of Seinsoth's office visits would reasonably have caused him to reconsider the importance of the 2003 CT scan is necessarily self-serving, and cannot substitute for expert standard-of-care testimony. Plaintiffs' response is noticeably devoid of specifics about what acts or events that occurred during office visits should constitute continuous negligent medical treatment, and the Court cannot reach a conclusion as to whether they possess the requisite factual support for their claim. Nevertheless, the missteps in Plaintiffs' responsive filing are irrelevant at this stage, because Dr. Sharbaugh's motion failed to shift the burden to Plaintiffs to identify the facts upon which they rest their allegation of continuous negligent treatment.
See Ogden, 591 A.2d at 222 (holding that defendant was required to support summary judgment motion with expert medical testimony where the merits of the motion " albeit based upon the statute of limitations, were completely dependent upon his own avowed compliance with the applicable standard of care and his attorney's legal arguments to that effect" (emphasis added)).
18. Accordingly, Defendant has not established that he is entitled to judgment as a matter of law, and his Motion for Summary Judgment must be DENIED.
IT IS SO ORDERED.
cc: John A. Elzufon, Esq. Andrea C. Rodgers, Esq. Ben T. Castle, Esq. Neilli Mullen Walsh, Esq.