Miller v. Christiana Care Health Services, Inc. ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KAREN I. MILLER, Individually and
as Representative of the Estate of
LOIS V. CARD, KRISTI WRIGHT,
and ERKKI M. AKKOLA,
Plaintiffs,
CHRISTIANA CARE HEALTH,
SERVICES, INC., IPC HEALTHCARE
INC., and MEGHANA DHAMDHERE,
M.D., Ph.D.,
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§
v. ) C.A. NO.: N16C-09-115 AML
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,) JURY TRIAL OF 12 DEMANDED
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Defendants. )
Submitted: June 21, 2018
Decided: September 28, 2018
Upon CCHS’s Motion for Partial Summary Judgment: DENIED
1. This medical negligence action arises from treatment a patient
received in the emergency room after experiencing severe chest pain. Among
other claims not at issue in this motion, Plaintiffs contend the tWo emergency room
doctors Who treated the patient negligently failed to diagnose her aortic dissection.
The hospital has moved for summary judgment as to the negligence claims against
the emergency room doctors, arguing Plaintiffs’ experts are not qualified to testify
regarding the standard of care applicable to emergency room physicians The issue
presented in the pending motion is Whether Plaintiffs may rely on the expert
opinions of two doctors Who are not experienced in emergency medicine. Those
doctors have testified that the standard of care for diagnosing aortic dissection is
the same regardless of the treating doctor’s specialty or the setting in Which care is
administered Because l find Plaintiffs have shown that their experts are qualified
to testify regarding the standard of care, I deny the motion for partial summary
judgment.
FACTUAL & PROCEDURAL BACKGROUND
2. The following facts are drawn from the complaint. Lois Card was
admitted to the Emergency Room at Christiana Care Health Services’ Wilmington
Hospital on the morning of March 1, 2015, after experiencing severe chest pain
and difficulty breathing The receiving nurse noted Card continued to experience
chest pain, headache, and non-radiating bilateral pain in her arms. After evaluation
by an emergency physician, an EKG showed Card had an irregular heart rate. A
chest x-ray showed mild vascular congestion, and a cardiac enzyme test showed a
negative troponin reading. At noon that day, Card’s care was transferred to IPC
Healthcare and Dr. Dhamdhere, where Card was diagnosed with chest discomfort
and atrial fibrillation. The same day, at approximately 5:00 p.m., Card came under
the care of Dr. Kathryn Groner, who determined Card needed to be transferred to
the hospital’s heart unit.l Before Card could be transferred, however, she became
l Neither the complaint nor the parties’ briefs discuss when Card came under the care of
Nitowski or what manner of treatment he provided. Dr. Nitowski is, however, noted as treating
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unresponsive. Card’s condition deteriorated and she was pronounced dead at
approximately 7:30 p.m. Card is survived by her children, Karen Miller, Kristi
Wright, and Erkki Al668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).
accept “as established all undisputed factual assertions . . . and accept the non-
movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt
will draw all rational inferences which favor the non-moving party.”5
7. Plaintiffs first argue Drs. Berger’s and Marks’ qualifications should be
analyzed under the Daubert standard on a motion in limine as opposed to a
dispositive motion. Courts in Delaware, however, repeatedly have resolved
dispositive motions on the basis of expert medical witnesses’ qualifications under
Section 6854.6 CCHS’s motion for summary judgment is a proper vehicle to
examine the experts’ qualifications and determine whether Plaintiffs may rely on
those experts’ opinions to establish their claims against CCHS.
8. CCHS argues summary judgment is appropriate because Plaintiffs
cannot meet their burden of proof at trial. Apart from several limited exceptions
not applicable here, Delaware law requires a plaintiff in a medical negligence
action to support her claim with expert medical testimony as to both the alleged
deviation from the standard of care and the causal connection between the
wrongful conduct and the alleged injury.7 If the plaintiff fails to support her
allegations with expert medical testimony, the defendant is entitled to judgment as
5 Marro v. Gopez, 1994 WL 45338, at *1 (Del. Super. Jan 18, 1994) (citing Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).
6 See, e.g., Hubscher v. Pam‘zer Mgmt. Co., 1995 WL 563272, at *1 (D. Del. Aug. 25, 1995);
Burkhart v. Davis, 602 A.2d 56, 59 (Del. 1991); Loftus v. Hayden, 391 A.2d 749, 753 (Del.
1978).
7 18 Del. C. § 6853(¢).
a matter of law.8 Title 18, Section 6854 of the Delaware Code requires a medical
expert opining as to standard of care to be “familiar with the degree of skill
ordinarily employed in the field of medicine on which he or she will testify.”9 If
an objection is made to a witness’s qualifications, the burden is on the party
proffering that witness to establish that the witness meets the standard under
section 6854.10
9. Although the general rule under Section 6854 is that a physician in
one field of medicine is not competent to testify about the standard of care in a
different field of medicine, there are at least two exceptions to that rule, namely
where: (l) “the methods of treating a particular ailment are generally the same in
either school,” and (2) “a physician, although trained in one school[,] steps out of
the practice of his own school and attempts to treat a patient in a manner practiced
by another school.”ll
Plaintiffs argue the first exception applies here. Although
Plaintiffs acknowledge that Drs. Berger and Marks are not emergency room
physicians, Plaintiffs contend the doctors are competent to opine in this case
because the standard of care for identifying and diagnosing aortic dissection is the
same for any doctor treating a patient with those symptoms, regardless of the
doctor’s specialty. Plaintiffs argue the area of expertise in this case involves aortic
8 Hubscher, 1995 WL 563272, at *4; Burkhart, 602 A.2d at 5 .
9 18 Del. C. § 6854 (emphasis added).
‘° Lq;:us, 391 A.2d 31753.
11 Hurley v. Medical Cemer ofDelaware, 1988 WL 130399, at *2 (Dei. super. Nov. 28, 1988).
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”12 In other
dissection, “a matter that crosses over multiple medical specialties.
words, Plaintiffs contend it is not relevant to the standard of care in this case that
the alleged negligence occurred in an emergency room setting.
10. CCHS, on the other hand, notes that emergency medicine is a
specialty, and Drs. Berger and Marks admitted they are not experienced in that
specialty. CCHS argues Dr. Berger is not presently a practicing physician, has
never worked as a hospitalist, and has no experience identifying or diagnosing
aortic dissection in an emergency room setting.13 Similarly, CCHS argues Dr.
Marks is not an emergency physician and only treats patients after an emergency
physician recommends admission14 Dr. Marks acknowledged in his deposition
that “I am not an expert in emergency medicine.”15
11. In support of its contention that Section 6854 precludes Plaintiffs’
experts from testifying in this case, CCHS relies on this Court’s decision in Werner
6 In Werner, this Court recognized that
v. Nam‘z'coke Memorz``al Hospital, Inc.l
emergency medicine involves a standard of care distinct from other fields of
medicine, and an expert witness who seeks to testify as to that standard must
demonstrate familiarity with emergency medicine,17 The plaintiff in Werner
12 Pls.’ Answer Br. at 5.
13 Def.’s Op. Br. Ex. B at 26, 29.
14 Def.’s op. Br. Ex. c 3124-25.
15 Def.’s op. Br. Ex. C. 3126.
16 2014 wL 5713137(1)@1. super.Nov. 3,2014)
11 181 31*2.
claimed an emergency room physician negligently failed to treat him for an
ischemic stroke.18 In support of his claim, the plaintiff proposed to call a
neurologist to testify to the standard of care.19 The plaintiff argued the neurologist
was qualified to testify to the standard of care because the defendant doctor acted
as a neurologist when he treated the plaintiff20 The Court rejected that argument,
holding the expert must be familiar with the standard of care for emergency
medicine specifically.21 The Court held that “an emergency room physician has
training and skills which, although [they] may overlap in some instances, are for
the most part distinct from those of board certified neurologists.”22 The Werner
Court also held that even physicians who have close and intense interactions with
emergency rooms or provide occasional emergency services still do not qualify as
experts in emergency medicine.23
12. CCHS’s reliance on Werner and similar cases is misplaced This case
more closely aligns with the Delaware Supreme Court’s decision in Baoust v.
Kraut.24 ln Baoust, the Court held the Superior Court erred in refusing to admit the
expert opinion of an infectious disease specialist who sought to testify regarding
the standard of care applicable to a neurosurgeon treating an infection after brain
181¢1. at*l.
191d
2°1¢1.@11*2.
21 lar
221d
23 Hubscher v. Pam‘zer Mgml‘. Co., 1995 WL 563272, at *6 (Del. Super. Aug. 25, 1995).
14 377 A.2d 4 (Del. 1977).
surgery.25 The Court acknowledged that an infectious disease specialist is not
competent to testify regarding neurosurgical technique, just as a neurosurgeon
cannot testify on proper treatment of infections unrelated to neurological disorders.
The Court found, however, that each competently could testify on the issue in
Baoust, which was whether a particular neurosurgical procedure was necessary to
treat an infection that arose after brain surgery.26
13. Here, Drs. Berger and Marks both testified that the standard of care
applicable to identifying and diagnosing aortic dissection is the same across
emergency, primary care, and cardiac fields of medicine.27 In Werner, the Court
found that the plaintiff Was trying to hold an emergency room doctor to the
standard of care applicable to a neurologist. Here, in contrast, Plaintiffs’ experts
have testified that the symptoms common to this condition present the same in
every setting, doctors across several fields of medicine are trained to recognize and
respond to those symptoms in the same way, and the standard of care for
responding to those symptoms does not change based on the treating doctor’s
specialty or the setting of care.28 As in Baoust, and unlike the facts in Werner,
Plaintiffs have offered evidence that aortic dissection is a medical problem of
concern to different specialties and shares a common standard of care across those
25 ld. 317-8
26 Id. at 7.
27 Pls.’ Answering Br. Ex. A at 130; Pls.’ Answering Br. Ex. B at 41-43, 59, 75.
28 Pls.’ Answering Br. Ex. A at 130-31; Pls.’ Answering Br. Ex. B a141-43, 59-61.
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specialties.29 Although CCHS may offer its own experts to testify that a different
standard of care applies in this case, CCHS is not entitled to summary judgment
because Plaintiffs have produced experts qualified to testify under Section 6854.
CONCLUSION
For the reasons set forth above, CCHS’s Motion for Partial Summary
Judgment is DENIED.
IT IS SO ORDERED.
/)NM%
Abig@i l g@ilvl/ L'eGrov¢/Judge
Original to Prothonotary
cc: David G. Culley, Esquire
Richard Galperin, Esquire
Joshua Meyeroff, Esquire
29 Balan v. Horner, 706 A.2d 518, 520-21 (Del. 1998) (holding a gynecologist was competent to
testify as to the standard of care for general surgeons performing laparoscopies because the
record supported the conclusion that there was a common standard of care with respect to basic
laparoscopic procedures.).
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