Opinion
C.A. No. 06C-11-233-JOH.
Submitted: October 22, 2010.
Decided: December 7, 2010.
Upon Motion of the Plaintiffs for New Trial — DENIED .
Martin J. Siegel, Esquire, of the Law Offices of Martin J. Siegel, Wilmington, Delaware, Attorney for the Plaintiffs.
Colleen D. Shields, Esquire, of Elzufon Austin Reardon Tarlov Mondell, P.A., Wilmington, Delaware, Attorney for the Defendants.
MEMORANDUM OPINION
Following a defense verdict in this wrongful death medical negligence case, the plaintiffs have moved for a new trial. While there were a number of issues involved in this somewhat complex case, the issue upon which plaintiffs seek a new trial is straight-forward.
Peggy Friedel, Individually and as Administratrix of the Estate of Mandy Kaye Friedel and as Next Friend of Makayla Friedel and David Thomas Wheat, and David Friedel, Individually.
See pre-trial decision: Friedel v. Osunkoya, 2010 WL 1959588 (Del. Super.).
Mandy Friedel was twenty-four years old when she died. The cause of her death or inability to establish a cause was an issue a trial. Suffice it to say, plaintiffs argued methadone was a cause. Their causation expert attributed her death to an overdose of methadone and an antibiotic which defendant Dr. Abimbola Osunkoya had prescribed for her.
It is the methadone prescription which is the center piece of the plaintiffs' new trial motion. Their motion tracks one of the essential pivotal factual dispute at trial.
The evidence at trial showed that Mandy Friedel had been abusing pain killers for sometime prior to her death. She had even been released from a stay at MeadowWood just before the appointment where Dr. Osunkoya prescribed her methadone. She had taken Percocet, stolen from her grandparents, and Oxycontin over a period of several months prior to her MeadowWood stay in mid-November 2004.
Dr. Osunkoya first saw her on November 24, 2004. His office notes for that day indicate Mandy mentioned recent abuse of narcotic pain killers, feeling stressed, continuing lower back pain, history of attempted suicide, and other conditions. That same office note states, "Recent Narcotic overdose, Now with withdrawal Start Methadone [dosage]." It also states "Back pain. . . ." but does not indicate the methadone was prescribed for that condition.
Joint Exhibit, Tab 23.
On December 1, 2004, Mandy Friedel's grandmother found her on the floor unresponsive. She was later pronounced dead at Kent General Hospital.
Dr. Osunkoya and all of the parties' experts agreed that it would be a breach of the standard of care to prescribe methadone for substance abuse maintenance/treatment and allow the patient to take it home. Considering its potential toxicity and the high risk a substance abuser will in turn abuse methadone, its use for maintenance must be in a strict clinical settling where the patient's intake is monitored. The experts disagreed, however, whether methadone is an appropriate drug for back pain. There was no evidence, on the other hand, that it was a breach of the standard of care to prescribe it for back pain. In such a situation, where the patient had no history of substance abuse, prescribing it for back pain is not unheard of.
Yet, the contemporaneous records would appear to indicate Dr. Osunkoya prescribed methadone in his office, for her to use outside his office, for opiate withdrawal maintenance. Dr. Osunkoya did not believe Mandy Friedel was at risk for abuse of the methadone. At his pre-trial deposition and at trial, however, Dr. Osunkoya testified he prescribed methadone to combat Mandy Friedel's long standing, worsening back pain. There is not much in the medical records for that condition and her family testified of very few complaints from her about low back pain.
The plaintiffs' new trial motion focuses on the contemporaneous medical records which may support Dr. Osunkoya's prescribing methadone for withdrawal maintenance. Dr. Osunkoya relies upon his deposition testimony and trial testimony that he prescribed it for her allegedly intractable back pain (at least as far as her complaints to him). Such a conflict is not for the Court to resolve but is one for the jury. While the plaintiffs' dispute the way the jury decided this credibility dispute, its determination is controlling.
Without saying so, plaintiffs are arguing Mandy Friedel's lack of back pain complaints to them undermine the idea she had back pain and, if she did, it was not as bad as Dr. Osunkoya's opinion of what Mandy reported to him. That, it is implicitly argued, should undermine the credibility of his trial testimony. It will never be known if Mandy Friedel exaggerated her back pain symptoms to Dr. Osunkoya to cause him to prescribe methadone for its treatment.
Knight v. State, 690 A.2d 929, 932 (Del. 1996).
Conclusion
For those reasons stated herein, plaintiffs' motion for a new trial is DENIED.
IT IS SO ORDERED.