Opinion
C.A. No. 05C-02-031 WLW.
Submitted: February 26, 2007.
Decided: May 25, 2007.
Upon Defendant Nanticoke Surgical Associates, P.A.'s Motion for Summary Judgment. Denied.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
Dennis D. Ferri, Esquire of Morris James LLP, Wilmington, Delaware; attorneys for the Defendants.
ORDER
Defendant Nanticoke Surgical Associates, P.A. ("Nanticoke Surgical") filed a Motion for Summary against Plaintiffs, Arba L. Henry individually and as executor of the estate of Paige M. Henry, on the ground that there is no genuine issue as to any material fact as it pertains to Nanticoke Surgical, and it is entitled to judgment as a matter of law. Plaintiffs contend that Nanticoke Surgical, through actions of its agents, committed medical negligence in its aftercare of Paige Henry ("Mr. Henry or the Decedent"). Plaintiffs argue that the Defendant breached the applicable standard of care, because no one from Nanticoke Surgical instructed Mr. Henry to report to either the hospital emergency room department or to his physician's office, in response to receiving a message from the deced ent concerning a "major gas probl em."
Plaintiffs filed a single Response that addresses both Defendant Smoot and Defendant Nanticoke Surgical Associates, P.A.'s Motions for Summary Judgment. The Defendants and Plaintiffs also filed supplemental memorandum on the issue, at the Court's request, following additi onal di scovery.
Standard of Review
Summary Judgment should be rendered 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 the record indicates 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 a decision as a matter of law. When a moving party through affidavits or other admissible evidence shows that there is no genuine issue as to any material fact, the burden shifts to the non-moving party to demonstrate that there are material issues of fact.
Superior Court Civil Rule 56(c).
Guy v. Judicial Nominating Comm'n, 649 A.2d 777, 780 (Del.Super. 1995).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Facts and Discussion
Plaintiffs brought a survival action and a wrongful death case against Defendants due to the death of Paige Henry. Mr. Henry died soon after he was released from Nanticoke Memorial Hospital following gastric bypass surgery performed by Dr. Smoot. Plaintiffs allege that the Defendant failed to respond properly to a medical complaint made by Mr. Henry to the on-call physician for Nanticoke Surgical on March 8, 2003, in which the Deceased complained of "major gas problems." Plaintiffs feel that the Defendant provided negligent aftercare to Mr Henry, resulting in his death.Viewing the facts a light most favorable to the non-moving Plaintiffs, the Court finds the following facts relevant: Dr. Miller's private work related phone number was provided to Mr. Henry in his discharge papers on March 7, 2003. The record reflects that Mr. Henry used his home phone on March 8, 2003 to contact the work related private phone number that was assigned to Dr. Miller. Dr. Miller was the on-call physician on March 8, 2003, and Dr. Miller concedes that Mr. Henry's postoperative care was provided by himself and Dr. Rodriguez.
Dr. Smoot, Dr. Miller and Dr. Rodriguez were all employed by Nanticoke Surgical.
When Mr. Henry made the phone call to Dr. Miller's private number, the phone call was received by Redi-Call Communications. An employee of Redi-Call communicated with Mr. Henry for thirty-six (36) seconds during the phone call. At the conclusion of the phone call, the Redi-Call employee transmitted a message to Dr. Miller's pager, which summarized the substance of the employee's conversation with Mr. Henry. The message read as follows: "PAGE HENRY AT [PHONE NUMBER] / MAJOR GAS PROBLEM / JUST RELEASED LAST NIGHT." The message was transmitted to Dr. Miller's pager at 5:34 p.m. on Saturday, March 8, 2003. The record does not show that the message was never received by Dr. Miller. The Court must assume for Summary Judgment purposes that Dr. Miller received the message that was sent to his pager.
Redi-Call has provided continuous customer service to Nanticoke Surgical since 1985.
This was the procedure Redi-Call followed in relaying messages to Doctors.
The message included Mr. Henry's home phone number, which the Court intentionally excluded.
The record merely reflects that Dr. Miller does not recall receiving the message.
Plaintiffs contend that someone from Nanticoke Surgical contacted Mr. Henry, in response to the Decedent's message, and negligently advised him to walk around and/or receive an enema. In support of this contention, Plaintiffs rely on the testimony of Katie Merrick, a friend of the decedent. Ms. Merrick's testimony explains what Mr. Henry told her about an alleged conversation that he had with Dr. Smoot. By Court Order, dated May 24, 2007, the Court concluded that Mr. Henry's statement to Ms. Merrick was inadmissible as hearsay without an exception. Therefore, Mr. Henry's statement regarding what Dr. Smoot allegedly advised him cannot come in through the testimony of Ms. Merrick.
There is no direct evidence that the alleged phone call was in response to the message transmitted to Dr. Miller's pager.
Plaintiffs contend that Ms. Merrick's statement "referencing Dr. Smoot could have meant the doctor himself or could have been shorthand for one of the other medical providers at Nanticoke Surgical Associates who treated him." Plaintiffs' Supplemental Response in Opposition to Defendants' Motion for Summary Judgment, FN 1, Page 11.
Consequently, there is a void in the record concerning whether Dr. Miller, or another Nanticoke Surgical employee, contacted Mr. Henry in response to the message Dr. Miller received on his pager. Further, the record lacks evidence regarding the substance of any conversations that may have occurred between Mr. Henry and any physicians.
Dr. Elliot R. Goodman, Plaintiffs' expert, opined that given Mr. Henry's medical condition and the content of the communication that was sent to Dr. Miller's pager, the appropriate standard of care required the treating physician(s) to direct Mr. Henry to report immediately to the hospital emergency department or the treating physician's office for evaluation. Failure to instruct Mr. Henry to report to one of these two places was a breach of the applicable standard of care. The record is not clear whether any physician from Nanticoke Surgical did or did not direct Mr. Henry to report immediately to the hospital or the physician's office, in response to Dr. Miller receiving the "major gas problems" transmission. A jury may be able to infer that the Decedent was not directed to report to the hospital or physician's office, since Mr. Henry did not report to either of these two places immediately (after the transmission of his message).
Dr. Goodman's Affidavit, dated October 5, 2006 at Paragraph 5(A).
Id.
Mr. Henry was eventually taken to the hospital on March 11, 2003.
Dr. Goodman further opined that it would be a breach of the standard of care for the physician to fail to respond promptly to this communication. The Defendant does not point to anything in the record that either documents or explains the substance of any responses made by any of its physicians that should have necessarily resulted from receiving Mr. Henry's "major gas problem" message.
Dr. Goodman's Affidavit, dated October 5, 2006 at Paragraph 5(B).
Therefore, Summary Judgment in favor of Defendant Nanticoke Surgical is not appropriate at this time. It may be desirable to inquire more thoroughly into the facts in this case. Further, the record would not permit a reasonable person to draw but one inference in favor of Nanticoke Surgical. A jury may be able to conclude that the Defendant breached the applicable standard of care. Therefore, the Court cannot conclude that the Defendant is entitled to judgment as a matter of law.
Based on the foregoing, Defendant Nanticoke Surgical's Motion for Summary Judgment is denied.
IT IS SO ORDERED.