Broughton v. Wong, M.D. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
MONICA BROUGHTON, )
Individually, and as Parent and )
Guardian of AMARI M. BROUGHTON- )
FLEMING, a Minor, )
)
Plaintiffs, ) C.A. No. N14C-01-185 MMJ
v. )
)
PETER J. WONG M.D., and )
DEDICATED TO WOMEN OB-GYN, )
P.A., )
)
Defendants. )
)
Submitted: October 9, 2015
Decided: November 24, 2015
On Defendants’ Motion for Partial Summary Judgment
DENIED
OPINION
Bruce L. Hudson, Esq., Hudson & Castle Law LLC, Attorney for Plaintiffs
Richard Galperin, Esq., and Joshua H. Meyeroff, Esq. (Argued), Morris James
LLP, Attorneys for Defendants
JOHNSTON, J.
FACTUAL AND PROCEDURAL CONTEXT
The issue in this case is whether certain of the claims for past medical
expenses are barred by the statute of limitations. If the claims must be brought by
the minor child’s guardian, they are time-barred. If past medical expenses claims
may be asserted by the injured child, the six-year state of limitations applies.
On January 20, 2014, Plaintiff Monica Broughton (“Guardian”),
individually and as the parent and guardian of Amari M. Broughton-Fleming
(“Amari”) (collectively “Plaintiffs”), filed this medical negligence action against
Peter J. Wong, M.D. (“Dr. Wong”) and his practice, Dedicated to Women OB-
GYN, P.A. (“Dedicated to Women”) (collectively “Defendants”). Guardian
alleges that Dr. Wong applied excessive downward traction to deliver Amari on
April 9, 2008. Amari presented with shoulder dystocia. Guardian claims that
medical negligence caused Amari to sustain a permanent injury to the right
brachial plexus, Erb’s Palsy with C5-C6 upper trunk avulsion and suprascapular
nerve injury on the right side.
Guardian was appointed Next Friend of Amari by Order of this Court on
March 13, 2014. On April 23, 2014, Defendants filed their Answer to Plaintiffs’
Complaint, denying all allegations of medical negligence. No affirmative defenses
were raised.
2
On April 24, 2015, Defendants filed this Motion for Partial Summary
Judgment as to Claims by Plaintiff Monica Broughton.
SUMMARY JUDGMENT STANDARD
Summary judgment is granted only if the moving party establishes that there
are no genuine issues of material fact in dispute and judgment may be granted as a
matter of law. 1 All facts are viewed in a light most favorable to the non-moving
party. 2 Summary judgment may not be granted if the record indicates that a
material fact is in dispute, or if there is a need to clarify the application of law to
the specific circumstances. 3 When the facts permit a reasonable person to draw
only one inference, the question becomes one for decision as a matter of law. 4 If
the non-moving party bears the burden of proof at trial, yet “fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case,” then summary judgment may be granted against that party. 5
ANALYSIS
An injury occurs either at the “date the wrongful act or omission occurred,” 6
or “at the time of the last act in the negligent medical continuum.” 7 Following the
injury, a plaintiff then has two years from the date of the injury to bring a medical
1
Super. Ct. Civ. R. 56(c).
2
Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 560 (Del. Super. 1989).
3
Super. Ct. Civ. R. 56(c).
4
Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
5
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
6
Dunn v. St. Francis Hosp., Inc., 401 A.2d 77, 80 (Del. 1979).
7
Id.
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negligence claim. 8 If the injury “was unknown to and could not in the exercise of
reasonable diligence have been discovered by the injured person,”9 the plaintiff
has three years to bring a claim. Plaintiffs under the age of six have until their
sixth birthday to bring a claim. 10
By enacting Section 6856, the General Assembly recognized that many
injuries take time to reveal their full extent of harm. Additionally, by extending
the statute of limitations for minors, the General Assembly intended that minors
not be penalized for their parents’ inaction or delay in bringing an action on their
behalf.
Defendants claim that Plaintiffs have waived their claims for Amari’s
medical expenses because Guardian is not pursuing any claims in her individual
capacity. Defendants argue that parents are “the proper party to recover medical
expenses for an injured minor” 11and are required to bring claims for a minor’s
past medical expenses as “the parties responsible for the child until he or she
reaches the age of majority.” 12
8
18 Del. C. § 6856(1).
9
Id.
10
18 Del. C. § 6856(2).
11
Myer v. Dyer, 643 A.2d 1382, 1386 (Del. Super. 1993).
12
Bayside Health Assoc. v. Del. Ins. Guar. Assoc., 2006 WL 1148667, at *5 (Del. Super. 1993); Hobbs v. Lokey,
183 A. 631, 632 (Del. Super. 1936) (“The father is primarily liable for [the expenses alleged to have been incurred].
He was, and is, liable for the support and maintenance of his minor son; and it cannot be presumed that he will not
meet his obligations.”).
4
Defendants’ reliance on Bayside Health Association v. Delaware Insurance
Guaranty Association, 13 and Hobbs v. Lokey14 is misplaced. Neither case
addressed whether Delaware’s statute of limitations bars a parent’s claims on
behalf of a child. However, in both cases, the Court characterized a minor’s
parents as having a right to bring a claim for past medical expenses on behalf of
the minor. 15
In Myer v. Dyer, 16 parents filed suit on behalf of their child as guardians ad
litem. The child was injured at birth. The Court dismissed the parents’ claims,
finding that they were filed well beyond the statute of limitation. Defendants then
moved to dismiss the child’s claim for past medical expenses. The Court denied
the dismissal, and held that a separate cause of action had been filed for the child.
Therefore, the minor could seek to recover past medical expenses.17 This Court
reasoned that “appointing the adult plaintiffs as guardians ad litem manifests a
clear intention on their part to bring a separate action on behalf of [the minor].” 18
The Court finds that Amari can seek to recover past medical expenses
incurred while a minor. There is no requirement that a parent bring a claim for
13
2006 WL 1148667 (Del. Super. 1993).
14
183 A. 631 (Del. Super. 1936).
15
Bayside, 2006 WL 1148667, at *5 (“However, it is the parents, as the parties responsible for the child until he or
she reaches the age of majority, who are the proper parties to seek compensation[.]”); Hobbs, 183 A. at 632 (“The
father is primarily liable for [the expenses alleged to have been incurred]….He has a right of action to recover the
loss and damage accruing to him.”).
16
643 A.2d 1382 (Del. Super. 1993).
17
Id. at 1387.
18
Id.
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medical expenses on behalf of their child. The only necessary legal procedure is
that a minor must assert claims through a court-appointed representative. The
General Assembly clearly intended that minors not be penalized for their parent’s
inaction or delay in bringing an action on their behalf.
The Court finds that there is no public policy justification for time-barring
past medical expenses under these circumstances. There are no individual claims
asserted by Guardian. All claims are essentially derivative for the benefit of the
child. All proceeds will be held in trust for care of Amari. If past medical
expenses were to be time-barred, Defendants would receive a windfall.
CONCLUSION
The claims for past medical expenses are for the benefit of the child. The
six-year statute of limitations pursuant to Section 6856 applies. The past medical
expenses are not time-barred. Although Guardian could have sought past medical
expenses in her individual capacity, all claims are derivative of the child’s claim
for medical negligence. The child’s rights prevail.
THEREFORE, Defendants’ Motion for Partial Summary Judgment is
hereby DENIED.
IT IS SO ORDERED.
/s/_Mary M. Johnston_________
The Honorable Mary M. Johnston
6