Opinion
C.A. No. 98C-12-075-JEB
Submitted: December 17, 2001
Decided: April 16, 2002
Defendant St. Francis Hospital's Motion for Summary Judgment.
Granted in Part. Denied in Part.
Michael D. Becker, Esquire, Wilmington, Delaware, attorney for the Plaintiffs.
Mason E. Turner, Esquire, Wilmington, Delaware, attorney for Defendant Howard Wilk, M.D. John D. Balaguer, Esquire, Wilmington, Delaware, attorney for Defendant St. Francis Hospital, Inc.
OPINION
This is the Court's decision on Defendant St. Francis Hospital's motion for summary judgment regarding Plaintiffs' medical malpractice action. For the reasons explained below, Defendant's motion is Granted in Part and Denied in Part.
FACTS
On January 7, 1997, Joseph A. Parker underwent a ventral hernia repair performed by Defendant Howard Wilk, M.D., at St. Francis Hospital. Mr. Parker was discharged the same day. Plaintiffs acknowledge that there was no breach in the standard of care provided in connection with this operation.
See Deposition of Lloyd Bergner, M.D., at 33.
On January 10, 1997, Mr. Parker went to the St. Francis Emergency Room complaining of abdominal distention and vomiting. He was admitted to the Hospital, and on January 12, 1997, Dr. Wilk performed an exploratory laparotomy. On January 17, 1997, Mr. Parker was found in his hospital bed not breathing and without a pulse. After unsuccessful resuscitation attempts, he was pronounced dead. The autopsy report concluded that the cause of death was a massive bilateral pulmonary thromboembolism, with obesity and cardiomegaly as contributing conditions.
On December 8, 1998, Plaintiffs filed a Complaint raising a wrongful death claim and a survival claim based on the negligence of both Defendants. Defendant St. Francis Hospital filed a timely motion for summary judgment seeking dismissal of the claims against it.
DISCUSSION
St. Francis Hospital argues that Plaintiff failed to meet their burden of offering expert testimony that there was a deviation from the applicable standard of care and a causal connection between the deviation and the injury. Plaintiffs argue that the report and deposition of their expert, Dr. Lloyd Bergner, read together, establish a basis for liability. Plaintiffs also raise the issue of the loss of chance doctrine and ask this Court to find that the Delaware Supreme Court's analysis of the statutory phrase "causes death" in United States v. Cumberbatch is overly restrictive and should not be applied in this case.
See Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
647 A.2d 1098 (Del. 1994).
Delaware's wrongful death statute, 10 Del. C. § 3724, provides a cause of action "for the benefit of the wife, husband, parent and child of the deceased person." In Cumberbatch, the Delaware Supreme Court emphasized that the basis of a loss of chance claim is the reduced chance of survival, not the death itself. For this reason, the Court concluded that a loss of chance claim is not viable in a statutory wrongful death action under 10 Del. C. § 3724.
United States v. Cumberbatch, 647 A.2d at 1103 (noting that the "crucial" distinction between the lost chance to survive and the loss of life itself is not always recognized and has led to a split of authority on this issue).
Id. at 1103 (concluding that "[b]ased on the nature of a wrongful death action and the statutory beneficiaries of the deceased (who sue in their own right, not as representatives of the deceased for the benefit of the deceased's estate), we conclude that a loss of chance claim is not viable in such an action").
In the case at bar, Plaintiffs' expert witness discussed causation in terms of the loss of Mr. Parker's chance to survive, not his death. In his affidavit, Dr. Bergner stated his opinion that the post-operative treatment provided to Mr. Parker by St. Francis and its staff "fell outside acceptable medical standards and fell below the standard of care required, resulting in a loss of chance to survive, as well as an increased risk of suffering a negative medical condition, including deep vein thrombosis, which in fact he did suffer, and ultimately his death." In his deposition, Dr. Bergner also stated that St. Francis failed to meet the required standard of care, but he did not state that such failure caused Mr. Parker's death. Thus, Plaintiffs have not presented evidence as to the cause of Mr. Parker's death, as required by 18 Del. C. § 6853 for a wrongful death action, and Defendant is entitled to judgment as a matter of law. Defendant St. Francis Hospital's motion seeking dismissal of the allegation of wrongful death is Granted.
Bergner Dep. at ¶ 4.
Plaintiffs also seek to pursue a survival claim based on loss of chance as well as increased risk. In Cumberbatch, the Court indicated that the loss of chance doctrine is viable in a survival action. In such a case, the alleged harm is to the person whose chance of survival might have been reduced. The Court concludes that Plaintiffs may proceed on their survival claim based on loss of chance, and to this extent, Defendant's motion is Denied.
Cumberbatch at 1103 (quoting with approval a Maryland Court of Appeals decision stating that "[i]f loss of chance damages are permitted they would under case law have to be awarded under a survival action, not a wrongful death action." Fennell v. Southern Md. Hosp. Ctr., 580 A.2d 206, 214 (Ct.App. 1990)).
Id.
In United States v. Anderson, the Supreme Court observed that loss of chance and increased risk of harm have "similar theoretical underpinnings" because the injury is not death but is rather the lost chance of survival or increased risk of harm. The Anderson Court reasoned that adopting loss of chance but not adopting increased risk as a distinct injury would be an "all-or-nothing" approach that would leave certain injuries incompensable and would also fail to deter negligent conduct if the professional serves a group with either very good chances or very bad chances of survival. Based on this reasoning, the Court held that "increased risk of harm accompanied by physical injury is a compensable element of damages under Delaware law."
669 A.2d 73, 75, 76 (Del. 1995).
Id. at 77.
Id. at 74. The Anderson Court did not decide whether a plaintiff may bring an independent cause of action to recover for increased risk of harm.
In the case at bar, Plaintiffs do not allege that Mr. Parker suffered both an injury and an increased risk of harm. The injury suffered is the lost chance to survive, which puts an end to any increased risk. Thus, while Plaintiffs have successfully asserted a claim for loss of chance of survival pursuant to 18 Del. C. § 6853, they have not shown both an injury and an increased risk of harm. The Court concludes that Plaintiffs may proceed with their survival claim based on loss of chance, but they may not seek damages for increased risk of harm.
CONCLUSION
For the reasons explained herein, Defendant's motion for summary judgment is Granted in Part and Denied in Part.
It Is So ORDERED.