                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2008

Farrell v. AI DuPont Hosp
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3664




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"Farrell v. AI DuPont Hosp" (2008). 2008 Decisions. Paper 1779.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1779


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                                                      NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                           No: 06-3664

  HOLLY FARRELL, AS PARENT AND NATURAL GUARDIAN
AND ADMINISTRATOR OF THE ESTATE OF ASHLEY MCARDLE,
 A MINOR, DECEASED; HOLLY FARRELL 1, INDIVIDUALLY,
                 IN HER OWN RIGHT,

                                Appellants

                                        v.

 THE A.I. DUPONT HOSPITAL FOR CHILDREN OF THE NEMOURS
          FOUNDATION; THE NEMOURS FOUNDATION;
            M.D. WILLIAM I. NORWOOD M.D., PH.D.;
DEBORAH A. DAVIS, M.D.; RUSSELL RAPHAELY, M.D.; P. KERINS,
   PERFUSIONIST; PAUL KERINS, Perfusionist, c/o A.I. DuPONT
                  HOSPITAL FOR CHILDREN

            Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                       (Civ. No. 04-cv-03877)
               District Judge: Hon. Berle M. Schiller

          Submitted pursuant to Third Circuit LAR 34.1(a)
                        December 6, 2007

          Before: McKEE, CHAGARES and HARDIMAN,
                         Circuit Judges

                  (Opinion filed: January 9, 2008)

                        ________________

                            OPINION
                        ________________
McKEE, Circuit Judge.

       Holly Farrell, individually and as the administratrix of the estate of Ashley

McArdle, her deceased minor daughter, appeals the district court’s order granting

summary judgment to the defendants based upon the court’s conclusion that Farrell’s

wrongful death action alleging medical malpractice was barred by the statute of

limitations. We will affirm.

       Because we write primarily for the parties, we need not recite the facts or

procedural history of this case. Farrell makes two arguments in support of her appeal.

First, she argues that the district court erred by finding that the statute of limitations was

not tolled by the doctrine of fraudulent concealment. In its thorough and well-reasoned

opinion, the district court explained why the doctrine of fraudulent concealment does not

apply to Farrell’s suit. Farrell v. The A.I. duPont Hospital for Children, 2006 WL

2035146 (E.D. Pa. July 19, 2006). We can add little to the district court’s excellent

analysis. Therefore, we will affirm the district court’s grant of summary judgment on

statute of limitations grounds substantially for the reasons set forth in the district court’s

well reasoned opinion.

       Farrell’s second argument on appeal does not appear to have been presented to the

district court, and is therefore waived. Nevertheless, we will briefly explain why the

argument lacks merit. Farrell contends that defendant William I. Norwood, M.D., Ph.D,

as a physician, was deemed to have a fiduciary relationship with her as Ashley’s mother



                                               2
and, therefore, had a duty to inform Farrell of the potential risk of surgery and post-

operative care. She further contends that Norwood’s alleged breach of that duty

somehow tolled the statute of limitations. We disagree.

         The physician-patient relationship here arose in Delaware, all medical treatment

occurred in Delaware and Ashley died in Delaware. Therefore, Delaware law applies.

See Troxel v. A.I. duPont Institute, 636 A.2d 1179, 1181 (Pa. Super. 1994) (state law

where medical treatment was provided generally governs substantive law). Under

Delaware law, a physician’s relationship to his/her patient and a “breach of a fiduciary

responsibility . . . has no relevance to [a] statute of limitations issue.” Shockley v. Dyer,

456 A.2d 798, 800 (Del. 1983). See also Tilden v. Anstreicher, 367 A.2d 632, 634 (Del.

1976).

         Accordingly, we will affirm.




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