Emery v. Christiana Care Health Services, Inc. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THOMAS EMERY, Individually )
and as the Administrator Ad )
Prosequendum of the Estate of )
HEATHER EMERY, Decedent; )
CONNIE COULBOURN; )
PASQUALE RUBINO as Guardian )
for PASQUALE ROBERT RUBINO )
)
Plaintiffs, )
)
v. ) C.A. No. N17C-09-165 JRJ
)
CHRISTIANA CARE HEALTH, )
SERVICES, INC. and CHRISTIANA )
CARE HEALTH SYSTEM, INC., )
)
Defendants. )
)
MEMORANDUM OPINION
Date Submitted: April 12, 2022
Date Decided: May 23, 2022
Upon Christiana Care Health Services Inc.’s Motion for Summary Judgment:
DENIED.
Phillip M. Casale, Esq., Morris James LLP, 500 Delaware Ave., Suite 1500, P.O.
Box 2306, Wilmington, DE 19899-2306, Attorney for Defendant.
Onofrio de Gennaro, Esq., Maron Marvel Bradley Anderson & Tardy LLC, 1201
North Market St., Suite 900, P.O. Box 288, Wilmington, DE 19899-0288, Attorney
for Plaintiffs.
Jurden, P.J.
I. INTRODUCTION
Plaintiffs allege medical negligence, wrongful death and survivorship claims
against Defendants Christiana Care Services, Inc., and Christian Care Health
System, Inc. (collectively “CCHS”) related to the death of Heather Emery. CCHS
seeks summary judgment suggesting that all those claims are time-barred by the two-
year statute of limitations under 18 Del. C. § 6856.1 Having now considered
Defendants’ Motion for Summary Judgment, Plaintiffs’ Response in Opposition,
and the record in this case, Defendants’ Motion is DENIED.
II. FACTUAL AND PROCEDURAL HISTORY
A. Heather Emery’s Medical Treatment
On August 29, 2015, Heather Emery sustained a severe injury to her spinal
cord that caused traumatic quadriplegia and left her without control or sensation in
her upper and lower extremities.2 She underwent surgery to correct and stabilize the
spinal cord injury on the following day.3 Following the surgery, it was noted that
she would benefit from a tracheostomy and PEG tube placement.4 That was
performed on September 4, 2015.5 Because the tube suffered from repeated
1
Motion for Summary Judgment (“Def.’s Mot.”) ¶¶ 3-4 (Trans. ID. 66867333).
2
First Amended Complaint (“FAC”) ¶¶ 16-19, 23 (Trans. ID. 61175951).
3
Id. at ¶ 22.
4
Id. at ¶ 25.
5
Id. at ¶ 26.
2
clogging, it was removed with plans to instead have Ms. Emery undergo surgery to
place a gastronomy tube into her remnant stomach.6
This surgery was performed on September 11, 2015, by Luis Cardenas, Jr.,
D.O., with the assistance of Irfan Rhemtulla, M.D.7 A discharge plan called for
Ms. Emery to be transferred to a neurorehabilitation facility on September 16.8
Unfortunately, on September 15, 2015, she displayed increasing signs of outward
sepsis.9
On September 16, 2015, at 2:30 a.m., a chest x-ray revealed images that raised
concerns of a bowel perforation.10 One hour later, Dr. Cardenas performed an
exploratory laparotomy based on a preoperative diagnoses of pneumoperitoneum,
abdominal compartment syndrome, and sepsis.11 He discovered copious amounts of
pneumoperitoneum and purulent material confirmed to be tube feed,12 along with a
gastric perforation surrounding the previous gastronomy tube placement.13 In
response, Dr. Cardenas removed approximately two liters of gastric contents as well
6
FAC at ¶¶ 27-28.
7
Drs. Cardenas and Rhemtulla, originally named as Defendants in this action, were dismissed by
stipulation on May 3, 2018. See Partial Stipulation of Dismissal as to Defendants Luis Cardenas,
Jr., D.O. and Irfan Rhemtulla, M.D., with Prejudice (Trans. ID. 61989578).
8
FAC at ¶¶ 29-30.
9
Id. at ¶ 31.
10
Id. at ¶ 32.
11
Id. at ¶¶ 33-34.
12
Id. at ¶ 35.
13
Id. at ¶ 36.
3
as the previous gastronomy tube,14 surgically repaired the previous tube site and the
gastric perforation,15 but the sepsis persisted post-surgically.16
On that same day, September 16, 2015, at approximately 8:00 a.m.,
Drs. Cardenas, Liporaci, and Laurence decided to operate again, and performed a
second laparotomy.17 They discovered a foul odor emanating from Decedent’s
abdomen and noted that there were no healthy-appearing areas on her small or large
bowel or abdomen.18 Ms. Emery’s bowel and multiple organ ischemia were too
severe, and she died at approximately 10 a.m. on September 16, 2015.19 The Death
Notice listed her cause of death as Disseminated Intravascular Coagulation (“DIC”)
caused by tube feed peritonitis, gastric perforation, and sepsis.20
B. Procedural History
Plaintiffs filed their Complaint on September 15, 2017, alleging medical
negligence against Defendants. An Amended Complaint was filed September 28,
2017. Defendants filed this pending Motion for Summary Judgment on August 20,
14
FAC at ¶¶ 37-38.
15
Id. at ¶ 39.
16
Id. at ¶ 40.
17
Id. at ¶ 41.
18
Id. at ¶ 42.
19
FAC at ¶¶ 43-44.
20
Id. at ¶ 46.
4
2021.21 Plaintiffs filed their response on December 13, 2021. On April 12, 2022,
this Court scheduled oral arguments.22 The matter is now ripe for consideration.
III. PARTIES’ CONTENTIONS
CCHS argues that since the allegations of negligence stem from the first
surgical procedure, namely the gastronomy tube placement performed on September
11, 2015, all claims are barred by the two-year statute of limitations under 18 Del.
C. § 6856,23 and that the Continuous Negligent Medical Treatment Doctrine
(“CNMT Doctrine”) is inapplicable.24 This argument is two-fold: 1) that Plaintiffs
fail to establish a continuous course of negligent medical treatment as originally
pled; and 2) that any allegations of negligence related to the subsequent repair
laparotomies were not sufficiently pled with particularity in violation of Superior
Court Civil Rule 9(b), and thus similarly time-barred under 18 Del. C. § 6856.25
Plaintiffs argue their claims were timely filed under the “Continuous Medical
Treatment” Doctrine.26 As to the Rule 9 notice challenge, Plaintiffs argue dismissal
is inappropriate where CCHS’s own expert disclosures addressed the subsequent
21
Proceedings in this matter were delayed on multiple occasions due to both the Covid-19
pandemic and trial scheduling conflicts.
22
Due to the unavailability of the parties, oral arguments were scheduled to take place on June 6,
2022. Upon further review of the pleadings and the record, the Court determines that oral
arguments are not required.
23
Def.’s Mot. at ¶¶ 3-4.
24
Id. at ¶¶ 5-7.
25
Id. at ¶¶ 8-10.
26
Plaintiffs’ Opposition to the Motion for Summary Judgment (“Pls.’ Opp.”), ¶ 2 (Trans. ID.
67162717).
5
surgical procedures performed through September 16, 2015.27 Alternatively, they
seek leave to amend to include the specific subsequent treatment.28 For the reasons
that follow, the Court need only review this Motion for Summary Judgment under
Rule 56.29
IV. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party establishes there are no
genuine issues of material fact in dispute and judgment may be granted as a matter
of law.30 All facts are viewed in the light most favorable to the non-moving party to
determine if there is any dispute of material fact.31 Once the moving party meets its
burden, the burden shifts to the non-moving party to establish the existence of
material issues of fact.32 The non-movant cannot create a genuine issue of material
fact with bare assertions or conclusory allegations, but must produce specific
evidence that would sustain a verdict in their favor.33
27
Id. at ¶ 13.
28
Id. at ¶ 14 n.2.
29
Since the Court makes its determination under Rule 56, and for the reasons more fully
discussed in this ruling, the Court does not need to consider the arguments presented under
Superior Court Civil Court Rules 9 or 15.
30
Del. Super. Ct. Civ. R. 56.
31
AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 444 (Del. 2005)
(quotations omitted).
32
Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).
33
Williams v. United Parcel Serv. of America, Inc., 2017 WL 10620619, at *2 (Del. Super. Nov.
9, 2017) (citing Citimortgage, Inc. v. Stevenson, 2013 WL 6225019, at *1 (Del. Super. 2013)).
6
V. DISCUSSION
Under 18 Del. C. § 6856, “[n]o action for the recovery of damages upon a
claim against a healthcare provider for personal injury, including personal injury
which results in death, arising out of medical negligence shall be brought after the
expiration of two years from the date upon which such injury occurred . . . .”34 Here,
Plaintiffs argue that the two repair surgeries performed on September 16, 2015 were
part of the medical continuum that began on September 11, 2015, and were
“inexorably linked” such that they constitute “‘Continuous [Negligent] Medical
Treatment’ pursuant to Ewing v. Beck . . . .”35 Accordingly, they maintain their filing
was timely.
Both sides cite to Ewing and G.I. Associates of Delaware, P.A. v. Anderson36
in support of their respective arguments related to the Continuing Negligent Medical
Treatment (CNMT) Doctrine. Notably, Ewing and Anderson37 involved medical
negligence cases related to deaths caused by cancer. In both cases, the trial and
34
18 Del. C. § 6856. Section 6856 provides three exceptions to the general two-year statute of
limitations, but Plaintiffs do not contend that any of the exceptions apply to the circumstances of
this case.
35
Pls.’ Opp. at ¶ 2. Although Plaintiffs refer to the doctrine as the “Continuous Medical Treatment
Doctrine,” the Court accepts that they intended to assert the “Continuous Negligent Medical
Treatment (CNMT) Doctrine in light of their reliance on Ewing v. Beck. See generally Ewing, 520
A.2d 653 (Del. 1987).
36
247 A.3d 674 (Del. 2021).
37
Anderson has been remanded to the Superior Court to make further factual findings related to
the date of injury. That issue is not before this Court. Anderson is mentioned solely for the
purposes of its general discussion regarding the Continuous Negligent Medical Treatment
Doctrine as presented here by the parties.
7
appellate reviews focused primarily on those defendants’ general failures to advise
or initiate timely treatment that extended for years. These failures affected the
applicable two and three-year statute of limitations such that the judicial
considerations in those cancer cases included not only determinations of the dates of
the alleged negligent acts but also dates of injury, and the time periods when
plaintiffs became aware of their injuries to trigger their causes of action. Those
issues are not before this Court. The alleged negligence here involves a five-day
course of inpatient treatment, not a five-year course of treatment related to cancer.38
Nevertheless, for purposes of analyzing the applicability of CNMT, Ewing
and Anderson are discussed briefly. Ewing discussed the applicability of both the
Continuous Treatment Doctrine and CNMT and held that Delaware recognizes the
latter for purposes of tolling considerations related to the statute of limitations.39
More recently, the Supreme Court again distinguished the applicability of the
doctrines in Anderson.40 The important distinction for purposes of the statute of
limitations is that the CNMT Doctrine looks to the “last act in the negligent
continuum, not the last act in treatment.”41
38
See generally Anderson, 247 A.3d 674.
39
See generally Ewing, 520 A.2d 653.
40
See Anderson, 247 A.3d at 681 (citing Ewing, 520 A.2d at 659–61).
41
Id. (emphasis added).
8
As the Delaware Supreme Court explained in Anderson:
When there is a continuum of negligent medical care related to a single
condition occasioned by negligence, the plaintiff has but one cause of
action—for continuing negligent medical treatment. If any act of
medical negligence within that continuum falls within the period during
which suit may be brought, the plaintiff is not obliged to split the cause
of action but may bring suit for the consequences of the entire course
of conduct.42
According to CCHS, the Plaintiffs’ pleading sets the last negligence in the
continuum as September 15, 2015—i.e. the non-surgical treatment involved in
diagnosing and treating the sepsis that resulted from the gastric perforation.43 CCHS
suggests that fatal to Plaintiffs’ claims is the absence of evidence to support this
assertion. Specifically, that Plaintiffs’ expert disclosures do not reference any
alleged failure to diagnose or address the sepsis,44 and Plaintiffs’ medical expert
testified there was no delay in diagnosing the signs and symptoms of a gastric
perforation.45 With this the Plaintiffs agree—to a point—that the failure-to-diagnose
assertion cannot support their theory of liability.46 Where the parties diverge is on
42
Id. at 680 (citing Ewing, 520 A.2d at 662) (emphasis added).
43
Reply in Support of the Motion for Summary Judgment, at ¶ 2 (Trans. ID. 67218353) (citing
FAC at ¶¶ 49, 57).
44
See Def.’s Mot. at ¶ 6; Def.’s Mot., Exh. A.
45
Def.’s Mot., Exh. B at 155:8-21 (“Q: …[I]t sounds like you are not going to be offering the
opinion at trial that there was a delay in diagnosing the signs and symptoms of a gastric perforation
in this case; is that correct? A: Absolutely not. It was picked up as quick as she presented, and they
operated expeditiously. . . I was impressed with that actually.”).
46
Pls.’ Opp. at ¶ 10 n.1 (though they will not pursue claims related to the timeliness of
identification of the sepsis, they do not abandon the claims “related to the cause and method of
the repairs of the gastric perforation.”).
9
what one should consider to be the continuum of care. And here, Defendants’
attempt to compartmentalize Ms. Emery’s five-day course of treatment fails.
A. Genuine Issues of Material Fact Remain as to Whether CNMT Applies
First, CCHS medical personnel chose to insert a gastronomy tube that required
two exploratory surgeries within five days to surgically remove it and repair the site
of its placement. Unlike the cancer cases that spanned years, these medical
responses to the alleged negligence were initiated within days of one hospitalization
period. And unlike those cancer cases, what linked the beginning and final negligent
treatment here was an active and accurate diagnosis of sepsis caused by the
misplaced tube. Accepting the rationale under Ewing, the record supports a finding
that a negligent medical act on September 11, 2015, resulted in further medical
treatment through these laparotomies that would have not otherwise occurred.
The Court finds that when viewed in the light most favorable to Plaintiffs,
summary judgment is inappropriate. The record establishes a genuine issue of fact
exists as to whether the treatment was inexorably related so as to constitute one
continuing wrong with the last act in the negligence continuum taking place on
September 16, 2015—the repair. If so, their claims were timely filed.
10
Next, Defendant relies on Anderson to suggest that “CNMT does not apply
when a second act in the continuum of care was not negligent.”47 Even if this were
an accurate read, Anderson is inapplicable where this record suggests that perhaps
the last acts during the continuum of care were also injurious. So, although the
medical experts agree that no liability attaches to the diagnosis and non-surgical
treatment of sepsis on September 15, 2015, Plaintiffs expect to present evidence that
the medical providers injured Ms. Emery’s superior mesenteric artery during a
surgical repair on September 16, 2015.48
In July of 2020, Plaintiffs tendered their standard of care and causation expert,
Dr. Stephen Cohen. When asked about this surgical repair, namely the first
laparotomy, he stated:
Q. Assuming there was no injury to the superior mesenteric artery on
the morning of September 16, 2015, do you believe more likely than
not Mrs. Emery would have survived her gastric perforation?
A. Yes, absolutely. And so did the surgeons taking care of her. . . . O]f
course they thought she was going to survive otherwise they wouldn’t
have operated. You don’t operate if you’re not going to survive or in
an operation you open and you close. . . and you tell the family. . . .
[T]hat’s why they did what they did which on the morning of the 16th
was appropriate.
Q. As it relates to your opinion that there was an injury of the
[superior mesenteric artery] during that first laparotomy on September
16, 2015, is it your opinion that causing that injury itself was a breach
47
Since this matter is currently pending this Court does not accept Defendants’ representations
regarding the Anderson ruling.
48
Def.’s Mot., Exh. A at 1.
11
of the standard of care or are we going back to your opinion that a
breach happened by not identifying the injury?
A. Well I think the breach is the injury itself. No doubt. The only way
you know you injured -- if you staple across the SMA or you do
something bad to it. . . . 49
Dr. Cohen opines that the cause of Ms. Emery’s death was dead bowel from
septic shock from tube feed peritonitis.50 This is consistent with the allegations in
the FAC that the cause of death, DIC, was caused by tube feed peritonitis, gastric
perforation, and sepsis.51 To the extent that Ms. Emery may have suffered an arterial
injury that caused her death, there is a genuine issue of fact as to whether more than
one act of negligence occurred in this timeframe. Since there are issues of material
fact related to the existence of malpractice from the continuum of negligent medical
care in this case, viewed in the light most favorable to the Plaintiffs, summary
judgment is not appropriate.
B. Defendants Had Sufficient Notice
Finally, the Court disagrees that Plaintiffs are asserting a new cause of action.
The opinions related to an alleged arterial injury are not new allegations of
negligence that would compel dismissal under Superior Court Civil Rule 9(b) for
lack of particularity where CCHS was placed on notice of the claims that arose
49
Def.’s Mot., Exh. B, at 177:13-178:21.
50
Id. at 184:20-22.
51
FAC at ¶ 46.
12
during Ms. Emery’s five days of continual treatment for her gastric issues.
Defendants have known through Plaintiffs’ Rule 26 Expert Witness Disclosure from
January of 2020 that Dr. Cohen’s testimony would cover not only the gastric
perforation but also the arterial damage caused in repairing it.52 It is not unusual for
liability theories to dissipate or develop more clearly during the discovery stages of
litigation.
Moreover, Defendants’ expert disclosures specifically address the September
16, 2015, laparotomies:
The 9/16/15 exploratory laparotomies were indicated and performed within
the standard of care. The surgeons did not cause an arterial injury when
exploring Mrs. Emery’s abdomen . . . . The 9/16/15 exploratory laparotomies
were indicated and performed within the standard of care. There is no
evidence that the surgeons caused an arterial injury when exploring Mrs.
Emery’s abdomen.53
Thus, it is clear Defendants had sufficient notice of claims relating to potential
arterial damage during the laparotomies; they addressed the very claims through
their experts.
52
Def.’s Mot., Exh. A at 1.
53
Pls.’ Opp. at ¶ 13 (quoting Defendants’ Rule 26(b)(4) Expert Disclosure). Defendants’ Rule
26(b)(4) Expert Disclosure was not provided to this Court for review.
13
CONCLUSION
Genuine issues of material fact exist as to whether Ms. Emery suffered a
medically negligent course of care that began with the faulty placement of the
gastronomy tube causing the gastric perforation, led to the development of sepsis,
the need for two attempts at surgical treatment, and resulted in the death of her bowel
and demise on September 16, 2015. CCHS’s attempt to compartmentalize this
course temporally to defeat a claim of negligence for the whole is unavailing. And
judgment as a matter of law under Rule 56 is undue.
Plaintiffs’ medical negligence claims are not time-barred under 18 Del. C. §
6856. So, Defendants’ Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
/s/ Jan R. Jurden
Jan R. Jurden
President Judge
JRJ:vlm
cc: Prothonotary
14