Opinion
C.A. No. 07C-02-015 RBY.
Submitted: July 5, 2007.
Decided: September 6, 2007.
Upon Consideration of Defendants' Motion for Judgment on the Pleadings, DENIED.
Stephen A. Hampton, Esq., Grady and Hampton, Dover, Delaware for Plaintiffs.
Michael B. Snyder, Esq., Snyder, Slutkin Snyder, Baltimore, Maryland for Plaintiffs.
Dennis D. Ferri, Esq., Morris, James, LLP, Wilmington, Delaware for Defendants.
OPINION AND ORDER
The Defendants, Cardiology Consultants, P.A. and Ali Delbakhsh, M.D., have filed, pursuant to Superior Court Civil Rule 12(c), a Motion for Judgment on the Pleadings arguing that the Plaintiffs' wrongful death action should be barred by the language of 10 Del. C. § 3724(e). For the following reasons, the Motion should be DENIED.
FACTUAL AND PROCEDURAL HISTORY
On December 18, 2003, Charles T. Hennegan, III, entered Christiana Hospital to undergo surgical insertion of a pacemaker and surgical ablation. This surgery was to be performed by Dr. Piamsook Angkeow, an employee of Cardiology Consultants, P.A. In preparing Mr. Hennegan for surgery, he was provided with 100% oxygen via a face mask. As Dr. Angkeow made his first incision using the electrocauterizer knife, the oxygen around Mr. Hennegan's upper body and in and around his face mask ignited. As a result of this surgical fire, Mr. Hennegan suffered major burns to his upper chest, face and airways.On August 4, 2004, Mr. and Mrs. Hennegan filed suit against Christiana Care Health Services ("CCHS") and multiple individual defendants, including Dr. Angkeow, for the injuries Mr. Hennegan sustained on December 18, 2003.
This is the first lawsuit brought by the Hennegans, Hennegan v. Christiana Care Health Services, et al., C.A. No.: 04C-08-006 JTV ("CCHS litigation").
In February 2005, Mr. Hennegan was diagnosed with carotid stenosis and was admitted to Beebe Medical Center ("BMC") to undergo carotid endarterectomy, a procedure to remove plaque from the carotid artery in the patient's neck. Dr. Ali Delbakhsh, an employee of Cardiology Consultants, P.A., performed the surgery at BMC on February 18, 2005. While recovering, Mr. Hennegan suffered cardiac and respiratory arrest and died on February 24, 2005.
Following Mr. Hennegan's death, a Suggestion of Death was placed on the record in the CCHS litigation. On June 3, 2005, an Amended Complaint was filed, substituting Mrs. Hennegan as executrix and noting Mr. Hennegan's death. On August 15, 2005, a Second Amended Complaint was filed, adding Mr. Hennegan's four daughters as plaintiffs in the action and a number of theories against the defendants, including a claim for wrongful death. On October 20, 2005, all the parties to the CCHS litigation settled the matter. Accordingly, the case was dismissed with prejudice on December 1, 2005.
On March 20, 2006, Mrs. Hennegan and Mr. Hennegan's four daughters, the Plaintiffs, filed a second lawsuit, against BMC, for negligence that occurred in the performance of the surgery at BMC, resulting in Mr. Hennegan's death. Specifically, the Plaintiffs contend that BMC. was negligent, because it knew that the injuries Mr. Hennegan sustained at Christiana Hospital increased his risk of respiratory problems following surgery. The Plaintiffs assert that, as a result of the BMC. failure to care properly for Mr. Hennegan, he suffered respiratory problems that ultimately resulted in his death.
This is the second lawsuit brought by the Hennegans, Hennegan v. Beebe Medical Center, C.A. No.: 06C-03-047 JTV, ("BMC litigation").
BMC has filed a Motion to Dismiss the action based on the CCHS litigation, and the ensuing settlement, and the language of 10 Del. C. § 3724(e), which states that "[o]nly 1 action under the subchapter lies in respect to the death of a person." On October 31, 2006, Judge Vaughn denied the Motion, finding that the settlement did not necessarily include damages as a result of Mr. Hennegan's death and that, as a result, BMC was not demonstrated to be suffering any harm that § 3724(e) was designed to prevent. Subsequently, the matter was voluntarily dismissed.
On February 12, 2007, the Plaintiffs filed a third lawsuit, the present action, against Cardiology Consultants, P.A. and Dr. Ali Delbakhsh. The Complaint, which consists of a survival action and a wrongful death action, arising from the death of Mr. Hennegan following the surgery performed by Dr. Ali Delbakhsh at BMC Specifically, the Plaintiffs allege that Dr. Delbakhsh was negligent because he knew that the injuries Mr. Hennegan sustained at Christiana Hospital increased his risk of respiratory problems following surgery. The Plaintiffs assert that, as a result of Dr. Delbakhsh `s failure to care properly for Mr. Hennegan following surgery, he suffered respiratory problems that ultimately resulted in his death.
The Defendants have filed this Motion for Judgment on the Pleadings, which is presently before this Court.
STANDARD OF REVIEW
Superior Court Civil Rule 12(c) provides that, "[a]fter the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings." In considering a Motion for Judgment on the Pleadings, this Court must accept all well-pled allegations of the complaint as true, and assume the presentation of evidence sufficient to support those allegations. Furthermore, a Motion for Judgment on the Pleadings will not be granted if the plaintiffs may recover under any conceivable set of circumstances susceptible of proof under the complaint.
Shea v. Matassa, 2006 WL 258312, at *1 (Del.Super.) (citing Harman v. Masoneilan Int'l., Inc., 442 A.2d 487 (Del. 1982)).
Id. (citing Spence v. Funk, 396 A.2d 967, 968 (Del. 1978); Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952)).
If, in considering such a Motion, matters outside the pleadings are presented to, and not excluded by the Court, the motion shall be treated as one for summary judgment to be disposed of as provided in Rule 56. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Because this Court has been referred to matters outside the pleadings, on which it would necessarily rely in making its determination in this case, it will view this as a Motion for Summary Judgment.
Super. Ct. Civ. R. 12(c).
A motion for summary judgment should be granted if the record shows that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if, from the evidence produced, there is a reasonable indication that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law. The burden of proof is initially borne by the moving party. However, if the movant can meet its burden, then the burden shifts to a non-moving party to demonstrate the existence of material issues of fact. If, as in this case, the non-moving party is the party who will bear the burden of persuasion at trial, then, to survive summary judgment, that party is obliged to point to facts in the record that will support its prima facie case at trial. In resisting the motion, the non-movant's evidence of material facts in dispute must be sufficient to withstand a motion for judgment as a matter of law and must support the verdict of a rational jury.
Super. Ct. Civ. R. 56(c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995).
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
Super. Ct. Civ. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole v. Lowengrub, 180 A.2d 476 (Del. 1962)).
Id. at 681 (citing Hurtt v. Goleburn, 330 A.2d 134 (Del. 1974)).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); see also Hynansky v. Vietri, 2003 WL 21976031, at *2 (Del.Ch. 2003) ("In the face of a properly supported motion for summary judgment, the non-moving party must produce evidence that creates a triable issue of fact or suffer the entry of judgment against it.").
Lum v. Anderson, 2004 WL 772074, at *2 (Del.Super. 2004) (citing James W. Moore et. al., Moore's Federal Practice § 56.03[3], at 56-35 (3d ed. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252 (1986) and Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1148-1149 (Del. 2002) (en banc) (adopting Liberty Lobby's "main holding" that the substantive proof required at trial should be the substantive standard of proof at the summary judgment stage)).
DISCUSSION
The Defendants contend that Judgment on the Pleadings is appropriate based on both the language of 10 Del. C. § 3724(e) and the releases that settled the CCHS litigation. This argument, in the context of Judge Vaughn's decision, frames the issue in a way that this Court is asked to determine whether, as a matter of fact, the death of Mr. Hennegan was sued upon and resolved in the CCHS litigation. Upon examination of the pleadings and supporting exhibits beyond the pleadings, the Court finds that such an issue may be one that is presentable after unopposed affidavits or discovery on the topic or trial. However, it is not one that can be determined merely on the basis of the record as it now stands. The Court finds such a conclusion necessary, given that the issue is whether or not such an action is barred by the statute, which Judge Vaughn has already indicated is not necessarily, at least at this point, barred.Accordingly, the Defendants' Motion is DENIED WITHOUT PREJUDICE.
Defendants also have filed a Motion to Extend the Stay of Discovery. As this Court has denied the Motion forming the basis for the Stay, that Motion appears to be MOOT.
SO ORDERED.