       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CANDY VAUGHN, et al.,                          )
                                               )
      Plaintiffs,                              )
                                               )
      v.                                       )      C.A. No. N13C-07-132 ALR
                                               )
JEFFREY I. JACKERSON, D.O., et al.,            )
                                               )
      Defendants.                              )

                                       ORDER

                           Date Submitted: July 12, 2016
                            Date Decided: July 12, 2016

              Upon Reargument of Defendants’ Motions for Summary Judgment
                                      GRANTED

      This matter is before the Court on a motion for reargument with respect to

the motions for summary judgment regarding the statute of limitations filed by

Defendants Jeffrey Jackerson, D.O., Kent Diagnostic Radiology Associates, P.A.,

and Milford Memorial Hospital. Upon consideration of the facts, arguments and

legal authorities set forth by all parties; decisional precedent; and the record of this

case, the Court finds as follows:


      1.      This Court has issued several decisions addressing statute of

limitations in this matter. In the meantime, numerous procedural developments
changed the posture of this case for trial.1 The only claims to be tried are the

allegations by Plaintiffs of medical negligence by the radiologist and those entities

that are vicariously liable for the radiologist’s alleged negligence, specifically,

Jeffrey Jackerson, D.O., Kent Diagnostic Radiology Associates, P.A., and Milford

Memorial Hospital (referenced collectively as “Defendants”).


       2.     The medical negligence statute provides that a cause of action cannot

be brought after two years from the date the injury occurred.2 When a single action

of medical negligence is alleged, the “injury occurs when the wrongful act or

omission occurred.”3 However, the statute creates an exception when the injury

“was unknown to and could not in the exercise of reasonable diligence have been

discovered by the injured person,” in which case an action may be brought three

years from the date the injury occurred.4 In order to utilize the three-year statutory

period, “[the plaintiff] must show that the injury could not reasonably have been

known [], and that the injury was, in fact, not known to [the plaintiff] during the

two year period from the date of the injury.”5

       3.     The standard of review for a motion for reconsideration is well

established. A motion for reargument under Superior Court Civil Rule 59(e)


1
  Jury selection is scheduled to begin tomorrow, July 13, 2016.
2
  18 Del. C. § 6856.
3
  Dambro v. Meyer, 974 A.2d 121, 126 (Del. 2009) (citation omitted).
4
  18 Del. C. § 6856(1).
5
  Reyes v. Kent Gen. Hosp., Inc., 487 A.2d 1142, 1144–45 (Del. 1984).
                                              2
permits the Court to reconsider “its findings of fact, conclusions of law, or

judgment . . . .”6 Indeed, to prevail on a motion for reargument, the moving party

must demonstrate that “the Court has overlooked a controlling precedent or legal

principles, or the Court has misapprehended the law or facts such as would have

changed the outcome of the underlying decision.”7


       4.     The Court may grant summary judgment only where the moving party

can “show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”8 The moving party bears the

initial burden of proof and, once that is met, the burden shifts to the non-moving

party to show that a material issue of fact exists.9 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the

non-moving party.”10


       5.     In issuing its most recent decision in this case addressing the statute of

limitation by Order dated April 7, 2016, the Court accepted Plaintiffs’ claims that

there were material issues of fact in dispute.




6
  Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969); Miller v. New Castle Cty. & Dept. of
Land Use, 2016 WL 270531, at *1 (Del. Super. Jan. 21, 2016).
7
  Lamourine v. Mazda Motor of Am., Inc., 2007 WL 3379048, at *1 (Del. Super. Sept. 24, 2007).
8
  Super. Ct. Civ. R. 56.
9
  Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).
10
   Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
                                              3
      6.     The Court conducted a hearing on July 11, 2016, in advance of

empaneling a jury, for a more fully developed record on whether Plaintiffs could

establish that they should receive the benefit of the three-year statute of limitations

because the alleged negligence could not reasonably have been known and was not

in fact known during the two-year period from September 29, 2010. The parties

submitted written argument in support of their respective positions.


      7.     In consideration of the issues now before this Court, this Court is not

acting as a trier of fact, and is not assessing the credibility of evidence. Rather, the

Court has engaged in an inquiry as to whether there are or there are not genuine

issues of material fact in dispute and whether summary judgment should be entered

as a matter of law.


      8.     Based on the written submissions of the parties, as well as the record

developed at a hearing yesterday, July 11, 2016, at which Plaintiff Candy Vaughn

testified and at which twelve exhibits were introduced for the Court’s

consideration, the Court concludes that there are no material issues of fact in

dispute that are relevant to the question of the statute of limitations. Accordingly,

the standard for summary judgment has been met. Moreover, the Court concludes

that the non-disputed facts would have changed the outcome of this Court’s prior

decisions with respect to the statute of limitations. Accordingly, the standard for

reargument has been met.
                                           4
      9.     On September 29, 2010, James Vaughn had an x-ray on his right hip

that was interpreted by Dr. Jackerson as, inter alia, age compatible degenerative

changes—this was the only contact Dr. Jackerson had with James Vaughn

(“Alleged Negligent Act”). The undisputed evidence shows that the following

events took place within two years following the Alleged Negligent Act:


             (a) James Vaughn and his wife, Candy Vaughn, knew James Vaughn

had an x-ray and were informed of the results;


             (b) James Vaughn continued medical treatment with various

physicians, but the pain in his right hip got worse, he lost weight, and had

difficulty sleeping;


             (c) on May 9, 2011, Candy Vaughn contacted the medical office of

James Vaughn’s primary care physician, expressed concern that James Vaughn

might have bone cancer, and requested that the primary care physician order an

MRI and a CBC. Candy Vaughn was notified that the primary care physician

wanted James Vaughn to see an orthopedic doctor first and the orthopedic doctor

would decide what imaging to request. It was noted that James Vaughn had

already had an x-ray of his hip—the x-ray interpreted by Dr. Jackerson on

September 29, 2010;




                                        5
                (d) on July 20, 2011, James Vaughn suffered a fracture of his right

hip; he was transferred to University of Pennsylvania Hospital and was diagnosed

with cancer, specifically dedifferentiated chondrosarcoma in his right hip;

                (e) as of August 5, 2011, James Vaughn retained the law firm of Little

Page & Associates (“Law Firm #1”) regarding a possible claim of medical

negligence and Law Firm #1 requested medical records from James Vaughn’s

medical care providers on his behalf;


                (f) on September 21, 2011, James Vaughn met with his new primary

care physician, and was accompanied by his wife, Candy Vaughn, for this doctor’s

visit. The new primary care physician noted that James Vaughn “[h]as some

reactive depression, some anger at the med[ical] community in gene[eral] for lack

of communication & listening to his complaints over the preceding 18 mo[nth]s

before he had a pathological [fracture] of the hip … He does not feel like suing &

may not do that, but he understands delaying a [diagnosis] is always something

that can be pursued as a suit[;]”11


                (g) on January 28, 2012, Candy Vaughn met with James Vaughn’s

prior primary care physician, Dr. Brownstein, who had ordered the September 29,

2010 x-ray because Dr. Brownstein was Candy Vaughn’s primary care physician.


11
     Defendants’ Exhibit 10 (notes of September 21, 2011 office visit with C. Wagner, M.D.)
                                                6
Although the purpose of the visit was Candy Vaughn’s own health concerns, Dr.

Brownstein “did take time to go back through his record and noted and we

discussed the case. I explained that normal xrays of the hip were the main thing

that led the [diagnosis] astray[;]”12


                 (h) as of April 24, 2012, James Vaughn retained the law firm of

Schochor, Federico and Staton (“Law Firm #2”) regarding a possible claim of

medical negligence and Law Firm #2 requested medical records from James

Vaughn’s medical care providers on his behalf;

                 (i) James Vaughn died on June 1, 2012. The cause of his death was

the dedifferentiated chondrosarcoma;


                 (j) on June 6, 2012, Law Firm #2 requested medical records of James

Vaughn from February 2010 through July 2011; and


                 (k) on July 13, 2012, medical records were provided to Law Firm #2,

including a copy of the September 29, 2010 x-ray report.


          10.    The date of the Alleged Negligent Act is September 29, 2010. James

Vaughn had actual notice of the Alleged Negligent Act prior to his death on June

1, 2012, or was at least on inquiry notice of the Alleged Negligent Act within the

two-year statute of limitations. The Complaint in this medical negligence action

12
     Defendants’ Exhibit 9 (notes of office visit for Candy Vaughn with Dr. Brownstein).
                                                 7
was filed on July 11, 2013. Accordingly, this action against Defendants is time-

barred.13


      NOW, THEREFORE, this day of 12th day of July, 2016, Defendants’

motions for summary judgment are hereby GRANTED and JUDGMENT is

hereby entered in favor of Defendants Jeffrey Jackerson, D.O., Kent

Diagnostic Radiology Associates, P.A., and Milford Memorial Hospital and

against Plaintiffs.

      IT IS SO ORDERED.


                                         Andrea L. Rocanelli
                                         ____________________________________
                                         The Honorable Andrea L. Rocanelli




13
  Dambro, 974 A.2d at 131; Meekins v. Barnes, 745 A.2d 893, 900 (Del. 2000); Ewing v. Beck,
520 A.2d 653, 659 (Del. 1987); Dunn v. St. Francis Hosp., 401 A.2d 77, 81 (Del. 1979).
                                            8
