Estate of Susan J. Moulder v. Park, M.D. ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
The Estate of SUSAN J. )
MOULDER, MICHAEL J. )
MOULDER, as Executor for the )
Estate and Individually,
)
)
Plaintiffs,
)
v. ) C.A. No. N20C-03-299 AML
)
SUJUNG PARK, M.D., )
Individually; and MEDICAL )
ONCOLOGY HEMATOLOGY )
CONSULTANTS, P.A., a )
Delaware Professional )
Association, et al., )
)
Defendants. )
Submitted: June 7, 2022
Decided: September 29, 2022
MEMORANDUM OPINION
Upon Defendant's Motion for Summary Judgment - GRANTED
Bartholomew J. Dalton, Esq and Jessica Needles, Esq. of DALTON &
ASSOCIATES, PA., Wilmington, Delaware; Attorneys for Plaintiffs Michael
J. Moulder, as Executor for the Estate of Susan J. Moulder.
Stephen J. Milewski, Esq. and Emily K. Silverstein Esq., of WHITE AND
WILLIAMS LLP, Wilmington, Delaware; Attorneys for Defendants SuJung
Park, M.D. and Medical Oncology Hematology Consultants, P.A.
LEGROW, J.
The plaintiff in this case initiated a medical malpractice suit relating to
medical treatment administered to his late wife. The plaintiff alleges the defendant
doctor violated the applicable standard of care by failing to timely review and notify
the plaintiff’s late wife of a CT chest report that identified new pulmonary nodules
in her lungs. It is undisputed that the purportedly negligent medical care was not a
proximate cause of the decedent’s death, so the plaintiff has not made a wrongful
death claim. The plaintiff alleges, however, that as a result of the delayed
notification his late wife suffered severe emotional distress, pain, and suffering,
which would not have occurred but for defendant’s gross negligence and willful and
wanton conduct.
At the close of discovery, the defendant moved for summary judgment,
arguing that the plaintiff’s contended breach of the standard of care did not result
in a lack of treatment or physical injury, and that the plaintiff’s mental anguish
claim therefore fails as a matter of law. The primary issue raised by the pending
summary judgment motion is whether there is any record evidence that the
decedent’s “feelings of betrayal, increased drinking, and need to seek out other
medical providers” satisfy the requirement under Delaware law that a mental
anguish claim manifest with “substantial” and “ongoing” physical symptoms.
Because (i) the plaintiff has not created a record that his late wife suffered a physical
injury or had substantial and ongoing physical symptoms of mental anguish, and
1
(ii) even if the plaintiff created a record to meet that standard, the plaintiff has not
provided an expert opinion that there was a causal link between the defendant’s
alleged negligence and the plaintiff’s wife’s depression and anxiety, the defendant’s
motion for summary judgment is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the following facts are undisputed. Plaintiff, Michael
J. Moulder (“Mr. Moulder”), was married to Susan J. Moulder (“Mrs. Moulder”)
until her death in December 2018.1
Mrs. Moulder was diagnosed with Stage II squamous cell carcinoma of the
mouth in September 2016.2 Mrs. Moulder’s cancer was attributed to her significant
alcohol intake and smoking history.3 As part of her treatment, on October 11, 2016,
Mrs. Moulder underwent surgical resection of the floor of her mouth and ventral
surface of her tongue, and neck dissection.4 Mrs. Moulder then was enrolled in a
clinical trial for post-operative external beam radiation therapy without
chemotherapy.5 The clinical trial protocol included post-treatment imaging with
chest CTs every six months.6 Mrs. Moulder’s course of treatment for her mouth
1
Pl.’s Compl. ¶ A.
2
Plaintiff’s Answering Brief in Opposition to Defendant’s Summary Judgment Motion (hereinafter
“Pl.’s Answ. Br. in Opp.”) at 2.
3
Defendant’s Motion for Summary Judgment (hereinafter “Def.’s Mot.”) at 2.
4
Pl.’s Answ. Br. in Opp. at 2.
5
Def.’s Mot. at 2-3.
6
Id. at 3.
2
cancer was complicated by osteoradionecrosis of the mandible, sub-arachnoid
hemorrhage, bi-apical nodularity, hypertension, and hyperlipidemia.7 She
experienced substantial pain, depression, and anxiety associated with the lifestyle
changes she endured during her cancer treatment and recovery.8
Approximately a year after completing cancer treatment, Mrs. Moulder began
seeing the defendant, Dr. Sujung Park.9 While under Dr. Park’s care, Mrs. Moulder
underwent a chest CT on January 12, 2018, as part of the clinical trial protocol.10
The radiologist’s impression noted “a 7 x 6 mm nodule in the posterior aspect of
the right middle lobe along the major fissure. Question of a new 5 mm left apical
nodule, although it is adjacent to pleural scarring.”11 The radiologist who conducted
the scan recommended Mrs. Moulder undergo a follow-up scan in three months.12
There is no dispute that Dr. Park’s office received the radiologist’s report in January
2018. There is, however, a factual dispute as to whether and when Dr. Park
reviewed the report. Dr. Park maintains she reviewed the report promptly and
recognized the recommendation for a three-month follow-up but made the decision
not to tell Mrs. Moulder immediately and to proceed with the existing protocol for
7
Id.
8
Defendant’s Opening Brief (hereinafter “Def.’s Opening Br.”, Ex. 6.
9
Pl.’s Compl. § B ¶ 10. Defendant Medical Oncology Hematology Consultants, P.A. is the practice
where Dr. Park works.
10
Def.’s Mot. at 3.
11
Id.
12
Id.
3
a six-month follow-up scan.13 Dr. Park testified she made this decision because
disclosing the nodule’s existence or ordering a three-month follow-up would
exacerbate Mrs. Moulder’s anxiety and discomfort with no corresponding
therapeutic benefit. Mr. Moulder, in contrast, contends Dr. Park either negligently
failed to review the report or failed to order the recommended follow-up, and that
in either case she violated the standard of care. For purposes of the pending
summary judgment motion, the Court adopts Mr. Moulder’s view of the facts.
Mrs. Moulder returned to Dr. Park on July 17, 2018, for her routine follow-up
appointment, and Dr. Park made no mention of the nodules in Mrs. Moulder’s
lungs. She did, however, instruct Mrs. Moulder to undergo another CT scan.14 On
July 27, 2018, Mrs. Moulder underwent the recommended chest CT, which
revealed the nodule had grown to 10 x 19 mm (previously 7 x 6 mm).15 After the
CT scan, Mrs. Moulder had a follow-up appointment with Dr. Park on August 2,
2018, at which point Dr. Park for the first time disclosed the presence of the new
nodules.16 Dr. Park was concerned the nodule growth was positive for either
metastatic or new primary lung cancer and referred Mrs. Moulder to pulmonary for
a bronchoscopy with biopsy, and PET/CT for full staging.17
13
Def.’s Opening Br. at 3-4.
14
Pl.’s Answ. Br. in Opp. at 5-6.
15
Def.’s Mot. at 5.
16
Pl.’s Answ. Br. in Opp. at 7.
17
Def.’s Mot. at 5.
4
As a result of the delayed notification of the pulmonary nodules, Mrs. Moulder
allegedly lost trust in Dr. Park and decided to seek a second opinion from Dr.
Christine Ciunci, M.D., at Penn Presbyterian Medical Center.18 Dr. Ciunci found
the nodules “concerning for metastases of her head and neck cancer v. less likely a
primary lung cancer vs. other” and referred Mrs. Moulder to an interventional
pulmonologist for biopsy.19 Due to other health issues, however, Mrs. Moulder did
not have any additional cancer testing. Specifically, in the fall of 2018, Mrs.
Moulder was admitted to the hospital several times for alcoholic hepatitis and liver
cirrhosis attributed to Mrs. Moulder’s heavy drinking.20 On November 14, 2018,
Mrs. Moulder was admitted to the hospital with hepatic encephalopathy. On
December 1, 2018, Mrs. Moulder died from end stage liver disease from alcoholism
and lung mass with metastatic disease to liver.21
Before Dr. Park told the Moulders about the nodule, Mrs. Moulder’s treatment
team referred her to a psychologist for anxiety and psychosocial issues.22 At an
appointment with a psychologist on July 24, 2018, Mrs. Moulder self-reported
depression and anxiety associated with her floor of mouth cancer, the pain
associated with it, and how it had impacted her life.23 Multiple treatment records
18
Pl.’s Answ. Br. in Opp. at 7.
19
Id. at 7-8.
20
Id. at 8.
21
Id.
22
Def.’s Mot. at 6. Ex. 6.
23
Id.
5
reflect that she consumed 750ml to 1.5L of sake wine per day, that she had been
drinking that amount for many years, and that she had no intention of stopping
despite her doctors’ recommendations that she do so.24 Mrs. Moulder’s ultimate
cause of death was severe liver disease unrelated to the cancer and attributable to
Mrs. Moulder’s significant alcoholism.25 Mr. Moulder does not contend that Dr.
Park’s delayed notification or the failure to order a three-month follow-up scan
contributed to Mrs. Moulder’s death. It is undisputed that there was no available
treatment for the nodules. Rather, Mr. Moulder contends Dr. Park’s actions caused
Mrs. Moulder mental anxiety and anguish. The record, however, reflects that Mrs.
Moulder was suffering from mental health concerns before Dr. Park’s alleged
negligence.
Mr. Moulder filed this action seeking judgment against Dr. Park for
compensatory and punitive damages and for loss of consortium. Mr. Moulder is not
pursuing a wrongful death claim, and all the parties’ experts agree that Mrs.
Moulder did not die from lung cancer and did not sustain physical injuries as a
result of Dr. Park’s treatment.26 At the close of discovery, Dr. Park moved for
summary judgment. After briefing and oral argument, the Court took the motion
under advisement.
24
Def.’s Mot. at 6. Ex. 6.
25
Id.
26
Def.’s Mot, Ex. 3 at 87, 102, 107.
6
PARTIES’ CONTENTIONS
Dr. Park argues that her motion for summary judgment should be granted
because any purported breach of the standard of care relating to Dr. Park’s treatment
did not result in a lack of treatment or any physical injury to Mrs. Moulder.27 Dr.
Park asserts that her decision to wait until a comprehensive diagnostic study and
testing was available did not cause any physical injury, and Mr. Moulder cannot
maintain a claim for mental anguish under Delaware law unless the mental anguish
manifests into physical symptoms.28 Dr. Park further contends Mr. Moulder’s loss
of consortium claim fails as a matter of law because it is derivative of “the
physically injured spouse’s cause of action.” Finally, Dr. Park asserts there is no
evidence supporting a punitive damages claim because, at most, Dr. Park’s
treatment was negligent and did not exhibit the heightened standard needed to allow
a jury to consider a claim for punitive damages.29
Mr. Moulder contends Dr. Park’s failure to timely notify Mrs. Moulder of the
new lung nodule and failure to appropriately order additional testing caused
physical injuries.30 Mr. Moulder asserts that the physical injury was “the potentially
malignant nodule growing unchecked” inside Mrs. Moulder’s lung and the
emotional distress the Moulders endured after learning of Dr. Park’s alleged
27
Def.’s Mot. at 9.
28
Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647, 651 (Del. 1984).
29
Def.’s Mot. at 16.
30
Pl.’s Answ. Br. in Opp. at 11.
7
duplicity.31 Mr. Moulder argues Dr. Park’s treatment resulted in Mrs. Moulder’s
feelings of betrayal, increased drinking, and need to seek out other medical
providers.32 Mr. Moulder contends a jury easily could find that Mrs. Moulder’s
rage, anxiety, depression, and increased drinking are legally recognized physical
injuries or symptoms.33 In addition, Mr. Moulder contends he will never know if,
had Mrs. Moulder had her follow-up CT scan earlier, the nodule would have grown
enough to be biopsied or be visible on a PET scan, and that regrettably, by the time
Mrs. Moulder had her follow-up CT in July 2018, she was too ill to have any viable
treatment options available to her.34
Finally, Mr. Moulder argues that he has a valid claim for loss of consortium
and that he is entitled to punitive damages because Dr. Park’s reckless indifference
toward Mrs. Moulder is the type of egregious behavior that punitive damages are
intended to address.35
STANDARD OF REVIEW
Summary judgment may be granted when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.36 A material
31
Id.32
Id. at 12.
33
Id. at 15.
34
Id. at 13.
35
Id. at 19.
36
Del. Super. Ct. Civ. R. 56(c).
8
issue of fact exists if “a rational finder of fact could find some material fact would
favor the moving party in a determinative way[.]”37
When considering a motion for summary judgment, the Court must view the
record in the light most favorable to the non-moving party.38 The moving party
bears the initial burden to demonstrate that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law.39 If the
moving party meets the initial burden, the burden shifts to the non-moving party to
show that a genuine issue of material fact is in dispute.40
To establish a claim for medical negligence, a plaintiff must show by a
preponderance of the evidence that a medical provider breached the standard of
care, the breach was a proximate cause of harm to the plaintiff, and the plaintiff
suffered damages from that harm.41 Delaware’s Medical Malpractice Act requires
expert testimony to establish (1) the applicable standard of care, (2) how the
provider’s care deviated from that standard, and (3) the causal connection between
the deviation and the alleged injury.42
37
Deloitte LLP v. Flanagan, 2009 WL 5200657, at *3 (Del. Ch. Dec. 29, 2009).
38
Hazel v. Del. Supermarkets, Inc., 953 A.2d 705, 709 (Del. 2008).
39
Rice v. Rice, 2020 WL 4908096, at *1 (Del. Super. 2020).
40
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
41
18 Del. C. § 6853; Jones v. Crawford, 1 A.3d 299, 302-303 (Del. 2010).
42
18 Del. C. § 6853; Vick v. Khan, et al., 2019 WL 2177114, at *6 (Del. Super. May 17, 2019).
9
ANALYSIS
A. The record would not allow a reasonable trier of fact to conclude Mrs.
Moulder suffered a physical injury or had physical symptoms of mental
anguish.
To recover for Mrs. Moulder’s mental anguish under Delaware law, Mr.
Moulder must show that the alleged mental anguish manifested into a physical
injury.43 “[The] alleged physical injury must be present at the time of the tort,”44 but
“[n]ot all physical injuries are recoverable.”45 When mental anguish manifests with
“substantial” and “ongoing” physical symptoms, a plaintiff may sustain a claim.46
Where, however, the mental anguish solely is in the form of emotional disturbance
and “transitory, non-recurring physical phenomenon,” there is no liability.47
In Lupo v. Medical Center of Delaware, Inc., a married couple sued the
defendant hospital for “mental anguish” stemming from “the lost opportunity to
spend time with their baby while it was alive, and the lost opportunity to arrange
for a religious ceremony and cremation of the body” of their newborn baby.48 The
plaintiffs’ symptoms consisted of “sleeplessness, headaches, crying spells, rage,
nervousness, guilt, eating disorders and depression” which lasted for over three
43
Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647, 651 (Del. 1984).
44
Doe v. Wildey, 2012 WL 1408879, at *7 (Del. Super. March 29, 2012).
45
Id.46
The Restatement (Second) of Torts, § 436A; Lupo v. Medical Center of Del. Inc., 1996 WL
111132 (Del. Super. 1996).
47
The Restatement (Second) of Torts, § 436A; Lupo v. Medical Center of Del. Inc., 1996 WL
111132 (Del. Super. 1996).
48
Lupo v. Medical Center of Del. Inc., 1996 WL 111132 (Del. Super. 1996).
10
years.49 The Court in that case closely considered subsection (c) of The Restatement
(Second) of Torts, § 436A, which states:
…long continued nausea or headaches may amount to physical illness,
which is bodily harm; and even long continued mental disturbance, as
for example in the case of repeated hysterical attacks, or mental
aberration, may be classified by the courts as illness, notwithstanding
their mental character. This becomes a medical or psychiatric problem,
rather than one of law.50
The Court found the married couple had “provided evidence which, if believed
by a jury, would establish that they had suffered substantial, recurring episodes of
sleeplessness, nightmares, headaches…and mental distress, which persisted over
three years and were still ongoing.”51 The Court found that a jury could conclude
they had suffered legally recognized physical injuries.”52
Conversely, in Doe v. Wildey, the plaintiffs alleged their sexual abuse resulted
in “physical injuries,” including the “physical phenomena [of] fear, feelings of
disgust, shame, anger and embarrassment.”53 The court denied the mental anguish
and emotional distress claims because they were transitory and not physical in
nature.54
49
Id. at *2 (Del. Super. 1996).
50
Lupo v. Medical Center of Del. Inc., 1996 WL 111132 at *3 (Del. Super. 1996)(citing
Restatement (Second) of Torts § 436A(c)(1965)).
51
Id. at *3.
52
Id.
53
Doe v. Wildey, 2012 WL 1408879, at *8 (Del. Super. March 29, 2012).
54
Id. (citing Restatement (Second) of Torts § 436A cmt. c & illus. 1)). The Restatement (Second)
of Torts § 436A explains that transitory, non-recurring physical phenomena, such as nausea and
11
Here, Mr. Moulder has not created a record from which a jury could conclude
Mrs. Moulder suffered a physical injury or had ongoing physical symptoms of
mental anguish. Mr. Moulder’s two theories regarding the presence of a physical
injury or symptoms both fail to meet Delaware’s standard for the type of physical
injury necessary to support a mental anguish claim. Mr. Moulder asserts the first
physical injury was the potentially malignant nodule growing unchecked inside
Mrs. Moulder’s lung and the emotional distress the Moulders endured after learning
of Dr. Park’s alleged duplicity.55 Here, however, there is no dispute that there was
no available treatment to slow or treat the nodules even if Mrs. Moulder had known
of them in January 2018. As a result, the growth of the nodules or the absence of
treatment was not caused by Dr. Park’s alleged negligence and cannot be the
physical injury necessary to impose liability for mental anguish.
Mr. Moulder alternatively asserts Mrs. Moulder suffered physical injuries as
her health and well-being deteriorated in 2018.56 Again, Mrs. Moulder’s physical
deterioration was unrelated to Dr. Park’s alleged negligence. Mr. Moulder himself
testified that these symptoms were from her liver disease.57 Mr. Moulder’s expert
has not opined that Mrs. Moulder’s worsening physical condition was caused by the
rage, “fall within the category of emotional disturbances which are not recognized as physical
illnesses.”
55
Pl.’s Answ. Br. in Opp. at 11.
56
Id. at 15.
57
Pl.’s Answ. Br. in Opp., Ex. B at 38.
12
new nodules identified in the scan. To the contrary, Mr. Moulder’s expert, Dr. David
Harris, who is board certified in internal medicine, medical oncology, and
hematology,58 testified that the injuries Mrs. Park suffered are “psychologic, mental
injuries, not so much injuries associated with the direct effects of the cancer.” 59 Dr.
Harris testified regarding Mrs. Moulder’s loss of trust, anger, and emotional trauma,
but those are forms of mental disturbance that cannot alone support a negligence
claim under Delaware law.60
Finally, Mr. Moulder also testified that Mrs. Moulder’s depression, anxiety,
and drinking worsened as a result of Dr. Park’s negligence. Increased alcohol
consumption, however, is not a physical symptom supporting a mental anguish
claim, and Mrs. Moulder’s depression and anxiety did not otherwise manifest in
sustained physical phenomena.61 For all the foregoing reasons, defendants are
entitled to summary judgment as to plaintiff’s mental anguish claim.
B. Even if Mr. Moulder had created a record of Mrs. Moulder’s physical
symptoms, Mr. Moulder has not provided an expert opinion as to a
causal link between Dr. Park’s alleged negligence and Mrs. Moulder’s
depression and anxiety.
Delaware law requires a plaintiff in a medical negligence case to support her
claim with expert testimony as to the standard of care, breach of that standard, and
58
Id. Ex. D, at 10:4-18.
59
Harris Dep. at. 102, Def’s. Mot. Ex. 3.
60
Id. at 106:24-107:5, Def’s. Mot. Ex. 3.
61
Hostetter v. Hartford Ins. Co., 1992 WL 179423, at *10-11 (Del. Super. Jul. 13, 1992) (rev’d
on other grounds, Connelly v. St. Farm, 135 A.3d 1271, Del. Super. Mar. 4, 2016)).
13
the causal link between that breach and the plaintiff’s alleged damages.62 “Proximate
cause is a necessary element of any tort claim.”63 “[A] proximate cause is one which
in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would not have occurred.” 64 Mr.
Moulder concedes that, in this case, he must proffer expert testimony that Dr. Park’s
actions or inactions were a proximate cause of the mental anguish Mrs. Moulder
allegedly suffered.65
Here, however, Mr. Moulder has not identified a qualified expert to testify as
to that causal link. It is undisputed that Mrs. Moulder suffered from depression,
anxiety, and alcohol use disorder before she learned about the nodules and Dr. Park’s
alleged duplicity. Dr. Harris testified in this matter as to the standard of care, opining
that a new finding of a nodule on a CT scan requires follow-up.66 With regards to
causation, Dr. Harris stated that he “believed Mrs. Moulder’s mental condition
would have been a lot better if Dr. Park had not been negligent.”67 It is important to
note that Dr. Harris is an oncologist who is not qualified to testify regarding
psychological conditions. Even if he was qualified, however, Dr. Harris has not
opined to a reasonable degree of medical probability that Mrs. Moulder’s pre-
62
18 Del. C. § 6853; Vick v. Khan, et al., 2019 WL 2177114, at *6 (Del. Super. May 17, 2019).
63
Doe v. Wildey, 2012 WL 1408879, at *4 (Del. Super. March 29, 2012).
64
Id.65
Pl.’s Answ. Br. in Opp. at 9.
66
Pl.’s Answ. Br. in Opp., Ex. D, at 54:12-24 and 55:1-3.
67
Harris Dep. at. 87, Def’s. Mot. Ex. 3.
14
existing mental health conditions worsened as a result of Dr. Park’s alleged
negligence. Mr. Moulder’s testimony that Mrs. Moulder drank more after learning
of the nodules does not constitute expert testimony of causation, and Mr. Moulder
has not pointed to any medical records indicating Mrs. Moulder’s depression,
anxiety, and drinking worsened after Dr. Park’s alleged negligence. Accordingly,
even if Mr. Moulder could satisfy the physical injury standard for the mental anguish
claim, Mr. Moulder has not satisfied Delaware’s requirement that a plaintiff proffer
expert opinion as to causation.
C. Mr. Moulder’s loss of consortium claim fails because Mr. Moulder has
not created a record that Mrs. Moulder suffered a physical injury or had
physical symptoms of mental anguish.
Mr. Moulder’s loss of consortium claim fails as a matter of law because it is
derivative of “the physically injured spouse’s cause of action.”68 Having concluded
that Mr. Moulder failed to create a record that would allow a jury to find in Mr.
Moulder’s favor as to Mrs. Moulder’s mental anguish, Mr. Moulder’s loss of
consortium claim fails as well.
D. Mr. Moulder’s punitive damages claim fails because there is no evidence
supporting a punitive damages award.
Mr. Moulder’s punitive damages claim fails for two independent reasons.
First, because Mr. Moulder cannot maintain his underlying cause of action for
68
Jones v. Elliott, 551 A.2d 62, 64 (Del. 1988).
15
compensatory damages, Mr. Moulder’s punitive damages claim necessarily fails.69
Second, and even if the mental anguish and loss of consortium claims could proceed
to trial, the record is not sufficient to allow a jury to consider a punitive damages
award in this case. A punitive damages claim in a medical negligence case is
governed by statute.70 Under the statute, the trier-of-fact must evaluate the
underlying facts and determine whether the conduct was egregious enough to
suggest malicious intent or willful and wanton misconduct.71 Such claims only can
reach a trier-of-fact if a reasonable inference exists to warrant an award.72 Punitive
damages are reserved for “I don’t care attitude[s],” “conscious indifference,” or
wanton or willful “disregard for the rights of others.”73 There can be no malicious
intent where “unforeseen damage or injury results from intended medication,
manipulation, surgery, treatment or the intended omission thereof, administered or
omitted without actual malice or if the intended treatment is applied or omitted by
mistake to or for the wrong patient or wrong organ.”74
As previously noted, there is a factual dispute as to why Dr. Park did not notify
Mrs. Moulder of the nodules in January 2018 and order the three-month follow-up
69
18 Del. C. § 6855.
70
Id.
71
Id.
72
Vick v. Khan, et al., 2019 WL 2177114, at *8 (Del. Super. May 17, 2019). “[A] failure to show
that a doctor acted with deliberate indifference to the patient’s health precludes jury consideration
of punitive damages.”).
73
Armstrong v. A.I. DuPont Hosp. for Children, 60 A.3d 414, 418 (Del. Super. 2012).
74
18 Del. C. § 6855.
16
scan recommended by the radiologist. But neither side’s view of the factual record
would permit a jury to award punitive damages. Dr. Park argues that, in deciding
how to proceed with treatment in Mrs. Moulder’s case, Dr. Park had to contend with
Mrs. Moulder’s significant mental health issues, her ongoing pain as a result of her
floor of mouth disease, the size of the nodule, its location, and the fact that it could
not be biopsied or tested. With these concerns in mind, Dr. Park contends she
exercised her clinical judgment and recommended a six-month follow-up scan, as
opposed to a three-month scan.75 If the jury accepted Dr. Park’s testimony, it could
not find she exhibited an “I don’t care attitude” or “conscious indifference” to Mrs.
Moulder’s health. Even Mr. Moulder’s expert testified that he did not believe Dr.
Park acted with an intentional misconduct to cause harm.76
Conversely, Mr. Moulder contends Dr. Park failed to timely review or
appropriately respond to the January 2018 CT scan. Even if the jury accepted that
view of the record, the alleged negligence is not indicative of conscious indifference
or willful or wanton misconduct. At most, that record would amount to the omission
of treatment without actual malice, which would not support a punitive damages
award. Accordingly, summary judgment is appropriate as to Count III.
75
Def.’s Mot. Ex. 5, at 32:3-12, 34:3-11, 38:18-39:16, 41:11-42:1.
76
Id. Ex. 4, at 89:6-9.
17
CONCLUSION
For the reasons set forth above, the Court grants Dr. Park’s motion for
summary judgment as to all Mr. Moulder’s claims. IT IS SO ORDERED.
18