IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KAREN I. MILLER, Individually and
as Representative of the Estate of
LOIS V. CARD, KRISTI WRIGHT,
and ERKKI M. AKKOLA,

Plaintiffs,

CHRISTIANA CARE HEALTH,

SERVICES, INC., IPC HEALTHCARE
INC., and MEGHANA DHAMDHERE,
M.D., Ph.D.,

)

)

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v. ) C.A. NO.: N16C-09-115 AML

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,) JURY TRIAL OF 12 DEMANDED
)
)
)

Defendants. )

Submitted: June 21, 2018
Decided: September 28, 2018

Upon CCHS’s Motion for Partial Summary Judgment: DENIED

1. This medical negligence action arises from treatment a patient
received in the emergency room after experiencing severe chest pain. Among
other claims not at issue in this motion, Plaintiffs contend the tWo emergency room
doctors Who treated the patient negligently failed to diagnose her aortic dissection.
The hospital has moved for summary judgment as to the negligence claims against
the emergency room doctors, arguing Plaintiffs’ experts are not qualified to testify
regarding the standard of care applicable to emergency room physicians The issue
presented in the pending motion is Whether Plaintiffs may rely on the expert

opinions of two doctors Who are not experienced in emergency medicine. Those

doctors have testified that the standard of care for diagnosing aortic dissection is
the same regardless of the treating doctor’s specialty or the setting in Which care is
administered Because l find Plaintiffs have shown that their experts are qualified
to testify regarding the standard of care, I deny the motion for partial summary
judgment.

FACTUAL & PROCEDURAL BACKGROUND

2. The following facts are drawn from the complaint. Lois Card was
admitted to the Emergency Room at Christiana Care Health Services’ Wilmington
Hospital on the morning of March 1, 2015, after experiencing severe chest pain
and difficulty breathing The receiving nurse noted Card continued to experience
chest pain, headache, and non-radiating bilateral pain in her arms. After evaluation
by an emergency physician, an EKG showed Card had an irregular heart rate. A
chest x-ray showed mild vascular congestion, and a cardiac enzyme test showed a
negative troponin reading. At noon that day, Card’s care was transferred to IPC
Healthcare and Dr. Dhamdhere, where Card was diagnosed with chest discomfort
and atrial fibrillation. The same day, at approximately 5:00 p.m., Card came under
the care of Dr. Kathryn Groner, who determined Card needed to be transferred to

the hospital’s heart unit.l Before Card could be transferred, however, she became

 

l Neither the complaint nor the parties’ briefs discuss when Card came under the care of
Nitowski or what manner of treatment he provided. Dr. Nitowski is, however, noted as treating

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unresponsive. Card’s condition deteriorated and she was pronounced dead at
approximately 7:30 p.m. Card is survived by her children, Karen Miller, Kristi
Wright, and Erkki Al<kola, who are Plaintiffs in this action.

3. On September 14, 2016, Plaintiffs brought a medical negligence claim
against CCHS, Dr. Dhamdhere, and IPC Healthcare. As part of their case,
Plaintiffs alleged that Card’s treating emergency physicians, Drs. Leonard
Nitowski and Kathryn Groner, failed to identify and diagnose Card’s aortic
dissection.2 In support of these allegations, Plaintiffs offer the testimony of Dr.
Thomas Berger, a former thoracic surgeon, and Dr. Donald Marks, a hospitalist.
Af`ter discovery, CCHS filed a motion for partial summary judgment as to all direct
negligence claims against CCHS’s emergency medicine staff.

THE PARTIES’ CONTENTIONS

4. In its motion for summary judgment, CCHS argues Plaintiffs’
witnesses are not qualified to testify to the standard of care for emergency
medicine. CCHS contends 18 Del. C. § 6854 requires Plaintiffs’ experts to be
familiar with the degree of skill ordinarily employed in the field of medicine on
which they will testify. Because Plaintiffs’ experts are not familiar with

emergency medicine, CCHS argues they cannot testify as to whether Card’s

 

Card at some time on March 1, 2015, during her stay at Wilmington Hospital. Pls.’ Answer Br. at
1.
2 Pls.’ Answering Br. at 1.

emergency physicians breached the standard of care, and Plaintiffs therefore
cannot maintain any direct medical negligence claims against CCHS’s emergency
staff.

5. ln response, Plaintiffs first argue CCHS’s motion should be raised as a
motion in limine, not a dispositive motion. Second, Plaintiffs argue the alleged
negligence involves the failure to diagnose an aortic dissection, which Plaintiffs
contend is a field that intersects multiple medical specialties. Because their experts
are familiar with diagnosing and treating aortic dissections, Plaintiffs argue their
experts are qualified to testify to the standard of care applicable to making that
diagnosis, whether the setting of care is an emergency room, urgent care, or
primary care office.

ANALYSIS

6. Summary judgment should be awarded if “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving

”3 When considering a motion for

party is entitled to a judgment as a matter of law.
summary judgment, the evidence and the inferences drawn from the evidence are

to be viewed in the light most favorable to the nonmoving party.4 The Court will

 

3 Super. Ct. Civ. R. 56(c).
4 Brzr).s'ka v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).

accept “as established all undisputed factual assertions . . . and accept the non-
movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt
will draw all rational inferences which favor the non-moving party.”5

7. Plaintiffs first argue Drs. Berger’s and Marks’ qualifications should be
analyzed under the Daubert standard on a motion in limine as opposed to a
dispositive motion. Courts in Delaware, however, repeatedly have resolved
dispositive motions on the basis of expert medical witnesses’ qualifications under
Section 6854.6 CCHS’s motion for summary judgment is a proper vehicle to
examine the experts’ qualifications and determine whether Plaintiffs may rely on
those experts’ opinions to establish their claims against CCHS.

8. CCHS argues summary judgment is appropriate because Plaintiffs
cannot meet their burden of proof at trial. Apart from several limited exceptions
not applicable here, Delaware law requires a plaintiff in a medical negligence
action to support her claim with expert medical testimony as to both the alleged
deviation from the standard of care and the causal connection between the

wrongful conduct and the alleged injury.7 If the plaintiff fails to support her

allegations with expert medical testimony, the defendant is entitled to judgment as

 

5 Marro v. Gopez, 1994 WL 45338, at *1 (Del. Super. Jan 18, 1994) (citing Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).

6 See, e.g., Hubscher v. Pam‘zer Mgmt. Co., 1995 WL 563272, at *1 (D. Del. Aug. 25, 1995);
Burkhart v. Davis, 602 A.2d 56, 59 (Del. 1991); Loftus v. Hayden, 391 A.2d 749, 753 (Del.
1978).

7 18 Del. C. § 6853(¢).

a matter of law.8 Title 18, Section 6854 of the Delaware Code requires a medical
expert opining as to standard of care to be “familiar with the degree of skill
ordinarily employed in the field of medicine on which he or she will testify.”9 If
an objection is made to a witness’s qualifications, the burden is on the party
proffering that witness to establish that the witness meets the standard under
section 6854.10

9. Although the general rule under Section 6854 is that a physician in
one field of medicine is not competent to testify about the standard of care in a
different field of medicine, there are at least two exceptions to that rule, namely
where: (l) “the methods of treating a particular ailment are generally the same in
either school,” and (2) “a physician, although trained in one school[,] steps out of
the practice of his own school and attempts to treat a patient in a manner practiced

by another school.”ll

Plaintiffs argue the first exception applies here. Although
Plaintiffs acknowledge that Drs. Berger and Marks are not emergency room
physicians, Plaintiffs contend the doctors are competent to opine in this case
because the standard of care for identifying and diagnosing aortic dissection is the

same for any doctor treating a patient with those symptoms, regardless of the

doctor’s specialty. Plaintiffs argue the area of expertise in this case involves aortic

 

8 Hubscher, 1995 WL 563272, at *4; Burkhart, 602 A.2d at 5 .

9 18 Del. C. § 6854 (emphasis added).

‘° Lq;:us, 391 A.2d 31753.

11 Hurley v. Medical Cemer ofDelaware, 1988 WL 130399, at *2 (Dei. super. Nov. 28, 1988).

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”12 In other

dissection, “a matter that crosses over multiple medical specialties.
words, Plaintiffs contend it is not relevant to the standard of care in this case that
the alleged negligence occurred in an emergency room setting.

10. CCHS, on the other hand, notes that emergency medicine is a
specialty, and Drs. Berger and Marks admitted they are not experienced in that
specialty. CCHS argues Dr. Berger is not presently a practicing physician, has
never worked as a hospitalist, and has no experience identifying or diagnosing
aortic dissection in an emergency room setting.13 Similarly, CCHS argues Dr.
Marks is not an emergency physician and only treats patients after an emergency
physician recommends admission14 Dr. Marks acknowledged in his deposition
that “I am not an expert in emergency medicine.”15

11. In support of its contention that Section 6854 precludes Plaintiffs’
experts from testifying in this case, CCHS relies on this Court’s decision in Werner

6 In Werner, this Court recognized that

v. Nam‘z'coke Memorz`al Hospital, Inc.l
emergency medicine involves a standard of care distinct from other fields of

medicine, and an expert witness who seeks to testify as to that standard must

demonstrate familiarity with emergency medicine,17 The plaintiff in Werner

 

12 Pls.’ Answer Br. at 5.

13 Def.’s Op. Br. Ex. B at 26, 29.

14 Def.’s op. Br. Ex. c 3124-25.

15 Def.’s op. Br. Ex. C. 3126.

16 2014 wL 5713137(1)@1. super.Nov. 3,2014)
11 181 31*2.

claimed an emergency room physician negligently failed to treat him for an
ischemic stroke.18 In support of his claim, the plaintiff proposed to call a
neurologist to testify to the standard of care.19 The plaintiff argued the neurologist
was qualified to testify to the standard of care because the defendant doctor acted
as a neurologist when he treated the plaintiff20 The Court rejected that argument,
holding the expert must be familiar with the standard of care for emergency
medicine specifically.21 The Court held that “an emergency room physician has
training and skills which, although [they] may overlap in some instances, are for
the most part distinct from those of board certified neurologists.”22 The Werner
Court also held that even physicians who have close and intense interactions with
emergency rooms or provide occasional emergency services still do not qualify as
experts in emergency medicine.23

12. CCHS’s reliance on Werner and similar cases is misplaced This case
more closely aligns with the Delaware Supreme Court’s decision in Baoust v.
Kraut.24 ln Baoust, the Court held the Superior Court erred in refusing to admit the
expert opinion of an infectious disease specialist who sought to testify regarding

the standard of care applicable to a neurosurgeon treating an infection after brain

 

181¢1. at*l.
191d
2°1¢1.@11*2.
21 lar
221d

23 Hubscher v. Pam‘zer Mgml‘. Co., 1995 WL 563272, at *6 (Del. Super. Aug. 25, 1995).
14 377 A.2d 4 (Del. 1977).

surgery.25 The Court acknowledged that an infectious disease specialist is not
competent to testify regarding neurosurgical technique, just as a neurosurgeon
cannot testify on proper treatment of infections unrelated to neurological disorders.
The Court found, however, that each competently could testify on the issue in
Baoust, which was whether a particular neurosurgical procedure was necessary to
treat an infection that arose after brain surgery.26

13. Here, Drs. Berger and Marks both testified that the standard of care
applicable to identifying and diagnosing aortic dissection is the same across
emergency, primary care, and cardiac fields of medicine.27 In Werner, the Court
found that the plaintiff Was trying to hold an emergency room doctor to the
standard of care applicable to a neurologist. Here, in contrast, Plaintiffs’ experts
have testified that the symptoms common to this condition present the same in
every setting, doctors across several fields of medicine are trained to recognize and
respond to those symptoms in the same way, and the standard of care for
responding to those symptoms does not change based on the treating doctor’s
specialty or the setting of care.28 As in Baoust, and unlike the facts in Werner,
Plaintiffs have offered evidence that aortic dissection is a medical problem of

concern to different specialties and shares a common standard of care across those

 

25 ld. 317-8

26 Id. at 7.

27 Pls.’ Answering Br. Ex. A at 130; Pls.’ Answering Br. Ex. B at 41-43, 59, 75.

28 Pls.’ Answering Br. Ex. A at 130-31; Pls.’ Answering Br. Ex. B a141-43, 59-61.

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specialties.29 Although CCHS may offer its own experts to testify that a different
standard of care applies in this case, CCHS is not entitled to summary judgment
because Plaintiffs have produced experts qualified to testify under Section 6854.

CONCLUSION

For the reasons set forth above, CCHS’s Motion for Partial Summary

Judgment is DENIED.

IT IS SO ORDERED.

/)NM%

Abig@i l g@ilvl/ L'eGrov¢/Judge

Original to Prothonotary

cc: David G. Culley, Esquire
Richard Galperin, Esquire
Joshua Meyeroff, Esquire

 

29 Balan v. Horner, 706 A.2d 518, 520-21 (Del. 1998) (holding a gynecologist was competent to
testify as to the standard of care for general surgeons performing laparoscopies because the
record supported the conclusion that there was a common standard of care with respect to basic
laparoscopic procedures.).

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